Smt. P. Manga Kumari

--1--

IN THE COURT OF JUDGE, FAMILY COURT-CUM-VII ADDITIONAL DISTRICT

JUDGE :: WEST GODAVARI AT ELURU.

Present: Smt.P.Manga Kumari

Judge, Family Court – cum –VII Additional District Judge

West Godavari, Eluru Friday, this the 18thday of November, 2022.

ORIGINAL SUIT No.170/2016

Between:

1.Smt.Chinta Seetha Mahalakshmi

2.Chinta Venkateswara Rao.

…Plaintiff

And

1.JammisettiHanumantha Rao

2.JammisettiDevendra Veera Raghava Rao

3.JammisettiJeethendra

4.Jarugu Srinivasa Rao

5.JaruguMaha Lakshmi

6.Jammisetti Lakshmi Savitri @ Sarada (the D4 is added as per the Orders in I.A.No.47/2017 dated 01.09.2017) (The defendants 5 and 6 are added as per the orders in I.A.No.996/2017

dated 08.09.2017).

… Defendants

This suit is coming on 08.11.2022 for final hearing before me for hearing in the presence of Sri S.V.R.Gandhi, learned advocate for the plaintiff and of Sri M.Lakshman Kumar,advocate for D1 to D3 and of Smt.K.Kalyani,Advocate for D4 to D6 and upon perusing the material on record and upon hearing arguments on both sides, and the matter having stood over consideration till this day, this Court delivered the following:-

J U D G M E N T

1. This Suit is filed by the plaintiff against the defendants to pass a decree declaring that the plaintiffs 1 and 2 are the absolute owners of the plaint schedule properties having right, title and interest over the plaint schedule properties by declaring that the gift deed executed by the first defendant in favour of the defendants 2 and 3 is null and void; --2--

2. To grant consequential relief of injunction restraining the defendants 1 to 3 from ever interfering with the peaceful possession and enjoyment of the plaintiffs 1 and 2 over the plaint schedule property and for costs.

3. The case of plaintiff in brief as per plaint averments is as follows:

The second plaintiff is the husband of the first plaintiff and residents of

Bapulapadu (Hanuman Junction). The defendants 2 and 3 are the sons of first defendant and residents of Bapulapadu. One Kammula Veera Raghavaiah

S/o JaruguVeeraiah is the maternal uncle of the second plaintiff as well as the first defendant. The second plaintiff is the son of Smt.Bala Saraswathi who is younger sister of Kammula Veera Raghavaiah whereas the first defendant is the son of

Jammisetti Seetha Mahalakshmi, who is also sister of Kammula Veera Raghaviah.

The first plaintiff is the daughter of Jarugu Pothuraju who is no other than the younger brother of Kammula Veera Raghavaiah. Kammula Veera Raghavaiah did

Rice mill business in Bapulapadu/Hanuman Junction and earned properties i.e an extent of Ac.1.85 cents in R.S.No.193/2 and an extent of Ac.1.90 cents in

R.S.No.193/5 totally an extent of Ac.3.75 cents situated at Bapulapaud village.

i) Kammula Veera Raghavaiah executed a Will dated 01.09.1976 in a sound and disposing state of mind whereby he bequeathed the plaint schedule properties and another an extent of Ac.0.56 cents (R.S.No.72/5-Ac.0.46 cents +

R.S.No.72/1- Ac.0.10 cents – Ac.0.56 cents) also an extent of Ac.0.09 cents of house site in Appannaveedu to his two nephews Chinta Venkateswara Rao and Jammisetti

Hanumantha Rao in two equal shares. Kammula Veera Raghavaiah looked after well by Chinta Mahalakshmi who is brother’s daughter of Kammula Veera Raghavaiah and she served the testator well with a sense of dedication and devotion in his old age providing timely food, medicines etc. Chinta Seetha Mahalakshmi did yeomen service to Kammula Veera Raghaviaah. Kammula Veera Raghavaiah amended and modified his Will dated 01.09.1976 and he executed a Codicil dated 15.09.1976 in --3-- a sound and disposing state of mind and he bequeathed the plaint schedule properties to his niece, the 1st plaintiff and her husband, the second plaintiff with absolute rights and the Codicil dated 15.09.1976 has come into force consequent on the death of Kammula Veera Raghavaiah on 27.09.1976. The plaint schedule properties are half of the extents in R.S.No.193/2-Ac.1.85 cents and R.S.No.193/5-

Ac.1.90 cents total Ac.3.75 cents. As a matter of fact, there is no division in total extents in the Will dated 01.09.1976 and codicil dated 15.09.1976 duly executed by

Kammula Veera Raghavaiah in a sound and disposing state of mind in token of service rendered by the 1st plaintiff. The execution of the Will as well as the codicil referred to supra are known to all the members of the family including the first defendant and his two sons. As a matter of fact, Jammiseti Hanumantha Rao has acquiesced the codicil dated 15.09.1976 and by virtue of the said codicil. The plaintiffs 1 and 2 have become the absolute owners of the plaint schedule properties having right, title and interest over the schedule property ever since the death of

Kammula Veera Raghavaiah. The first defendant knowing fully well about the codicil

dated 15.09.1976 has learnt to have scrumptiously executed two registered gift

deeds in favour of the defendants 2 and 3 dated 19.05.1006 in respect of the plaint schedule property and those two gift deeds are not true and valid and binding on the plaintiffs 1 and 2 and nonest in the eye of law. There is a cloud over the undisputed and un-assailable title of the plaintiffs 1 and 2.

ii) It is further averred that one Chalamalasetty Lakshmi Saraswathi D/o

Jarugu Pothuraju through his second wife has filed a suit O.S.No.34/2004 on the file of I Addl.District Judge’s Court, Eluru in respect of the properties including in respect of R.S.No.193/2-Ac.1.85 cents and R.S.No.193/5-Ac.190 cents which are described as item Nos.3 and 6 in the plaint schedule property appended to plaint in

O.S.No.34/2004 and this suit was filed against the first plaintiff wherein the first

plaintiff has resisted I.A.No.2976/2004 injunction petition by filing codicil dated 15.09.1976 in the suit O.S.No.34/2004. The 1st defendant has filed --4--

I.A.No.2818/2006 to implead him as 12th defendant in O.S.No.34/2004. The property described in R.S.No.193/2-Ac.1.85 cents and R.S.No.193/5=Ac.1.90 cents are subjected and the plaint schedule property is a part of the landed property described in O.S.No.34/2004 and those two registered gift deeds are hit by lispendens and the registration extract of the two gift deeds are filed as documents 3 and 4. The 1st defendant having absolute and perfect knowledge about the codicil

dated 15.09.1976 as well as pendency of suit O.S.No.34/2004 in respect of the

schedule properties but executed two fit deeds with an evil motive in order to have wrongful gain and to cause wrongful loss to these plaintiffs. The plaintiffs have been in possession and enjoyment of the entire land in R.S.No.193/2 and 193/5 in their own right. There is an injunction order passed in I.A.No.2976/2004 in

O.S.No.34/2004 dated 01.08.2005 by the District Court, Eluru the first defendant

has clandestinely executed two registered gift deeds dated 19.05.2006 and there not only hit by lispendens but also becomes void. Thereafter, the plaintiffs issued registered notices to the Tahsidlar, Bapulapadu and Revenue Divisional Officer,

Nuzvid dated 18.12.2008and 21.12.2008 bringing to their notice about the pending litigation as well as codicil. The plaintiffs are constrained to file this suit for declaration of their title over the plaint schedule property in view of the proclamation of the first defendant and his two sons claiming that they have obtained registered conveyance amongst them and on enquiry the plaintiffs learnt that the defendants 1 to 3 have collusively and nominally pressed into service the aforesaid two registered gift deeds. The 4th defendant is the son and 6th defendant is the daughter of the 5th defendant. They filed O.S.No.34/2004 for partition. In the said suit the 1st plaintiff is the 11thdefendant. The defendants 1to 3 are not parties to

O.S.No.34/2004. The defendants created a gift deed in respect of the plaint

schedule property. The plaintiffs filed suit for declaration of their title and to declare that the gift deed executed by the first defendant in favour of the defendants 2 and 3 is null and void. The defendants 4 to 6 are not entitled to re-agitate the same --5-- issues in the suit and the decree and Judgment that may be passed in

O.S.No.34/2004 is binding on the defendants 4 to 6. The defendants 4 and 5 created

and brought into existence settlement deed dated 12.03.2004 during the pendency of O.S.No.34/2004. The plaintiffs constrained to file a suit against them. The intention of the defendants 4 to 6 is to multiply and complicate the suit and they are not proper and necessary parties to the suit. Hence, the suit.

4. 1st Defendant filed written statement and the same was adopted by defendants 2 and 3 specifically denying all the plaint allegations and further contending that Kammula Veera Raghavaiah never executed any document subsequent to the execution of Will dated 01.09.1976 much less the alleged codicil

dated 15.09.1976 in a sound and disposing state of mind. There was no occasion

to execute the codicil by the said Late Kammula Veera Raghavaiah at any point of time and the same was not seen the light of the day, earlier. The Will dated 01.09.1976 is the last and final Will of the said Kammula Veera Raghavaiah and he did not execute any document subsequent to the said Will. The alleged execution of the codicil dated 15.09.1976 is nothing but a fabricated one. As the SRO of

Kanumolu insisted to incorporate that the 1st defendant is not a party to the said suit in O.S.No.34/2004 on the pretext that he received a letter. As such this defendant got prepared another set of gift deed incorporating the same. Later, the defendant No.1 filed a petition in the said suit to implead him as a party to the suit but the same was dismissed. As such this defendant is preferring an appeal. The 2nd plaintiff has also filed a suit in O.S.No.283/2009 on the file of Senior Civil Judge’s

Court, Eluru for partition of an extent of Ac.0.09 cents situated at Tallamudi village on false and frivolous contentions. This defendant is contesting the said suit also.

The said Kammula Veera Raghavaiah and his wife Smt. Eswaramma were died issueless. During his life time, the said Kammula Veera Raghavaiah has taken the responsibility of his younger sister Jammisetty Seeta Mahalakshmi out of love and affection towards her, from her tender age as there was lot of gap in age between --6-- them and he also performed her marriage. As such there were good relations in between the family of the said Kammula Veera Raghavaiah and the 1st defendant.

The said Kammula Veera Raghavaiah has also adopted the 1st defendant and his wife have taken care about the said Kammula Veera Raghavaiah till his death. In fact the 1st defendant and his wife had been staying with the said Kammula Veera

Raghavaiah till his death. The said Kammula Veera Raghavaiah has also taken care of the 2nd plaintiff as he was adamant during his childhood and the mother of the 2nd plaintiff died and his father married another woman. The family of 1st defendant and both the plaintiffs lived with the said Kammula Veera Raghavaiah even during his life time and also for about 5 years subsequent to his death. As such the said

Kammula Veera Raghavaiah is his sound and disposing state of mind has executed a Will on 01.09.1976 bequeathing his properties in favour of the 1st defendant and 2nd plaintiff equally. The said Kammula Veera Raghavaiah has given Ac.0.03 cents of house site to the brother of the 1st defendant namely Jammisetty Srinivasa Rao out of Ac.0.09 cents of Tallamudi village and the remaining extent was given to the 1st defendant and 2nd plaintiff equally. Unfortunately, the said Jammisetty Srinivasa

Rao was died issueless. His wife also separated from his long back before his death.

As such the 2nd plaintiff and the 1st defendant have partitioned the said Ac.0.03 cents of house site also equally. In the year 2006, the 1st defendant and the 2nd plaintiff have partitioned the properties which were inherited by them from the said

Kammula Veera Raghavaiah in the presence of elders along with the said extent of

Ac.0.03 cents of the said Jammisetty Srinivasa Rao. Since then the 2nd plaintiff and the 1st defendant have been enjoying their respective properties peacefully. On 19.05.2006 the 1st defendant has executed a gift deed in favour of the 2nd defendant and the 3rd defendant conveying an extent of Ac.0.89 ½ cents in R.S.No.193/2 and

R.S.No.193/5 and an extent of Ac.0.89 cents at R.S.No.193/2 and R.S.No.193/5 of

Bapulapadu village respectively. Since then the 2nd and 3rd defendants have been enjoying their properties with absolute rights. The 2nd defendant has also filed a --7--

W.P.No.7989/2008 on the file of Hon’ble High Court of Andhra Pradesh which was disposed off with a direction to consider the application of the petitioner for issuing pattadar pass book and title deed in his favour and pass appropriate orders in accordance with law, expeditiously preferably with a period of 3 months. But the

Revenue authorities have maintained silence for the reasons best known to them.

i) It is further averred that out of love and affection towards the 1st defendant,

Kammula Veera Raghavaiah during his life time executed a registered settlement deed dated 07.09.1973 which was earlier to the Will dated 01.09.1976 in respect of the share in a total extent of Ac.0.70 cents with along with terraced building situated therein and further he also settled half of the extent in Ac.0.92 cents of site covered by R.S.No.188/3 with assessment No.310 along with a Rice mill situated under the name of Sri Krishna Rice and Dall Mill and likewise out of love and affection. He also executed another settlement deed dated 25.09.1974 in respect of the remaining half share in the above said properties in favour of the 2nd plaintiff. The 1st defendant purchased the remaining house property of the 2nd plaintiff which was devolved from the said Kammula Veera Raghavaiah. The 2nd plaintiff and 1st plaintiff have made an evil design to grab the entire plaint schedule property and they developed grudge and eye sore against the defendant and his family members to enrich themselves fabricated the alleged codicil dated 15.09.1976 allegedly executed by late Kammula Veera Raghavaiah by forging his signature. The said Codicil is not valid and the same was nothing but fabricated one with the assistance of his henchmen. The plaintiffs have not entitled either for declaration that they are the absolute owners of the plaint schedule property or for a consequential relief injunction or for other reliefs in whatsoever manner. Hence, prayed to dismiss the suit.

5. The defendant No.4 filed written statement and the same is adopted by defendants 5 and 6 specifically denying all the plaint allegations and further contending that the defendant’s mother Smt. Jarugu Mahalakshmi is the 2nd wife of --8-- late Pothuraju while the 1st plaintiff is the 11th defendant in O.S.No.34/2004 (Smt. Chinta Sithamahalakshmi) is the daughter of late Pothuraju by his 1st wife.

The defendant’s father late Jarugu Pothuraju after the death of his 1st wife Smt.

Savitramma prior to 1964 married this defendant’s mother. By her he had three issues namely Lakshmi Savithri @ Sarada, Veera Venkata Satyanarayana

Vara Prasad and this defendant. His elder brother Veera Venkata Satyanarayana

Vara Prasad died in the year 1975. Jarugu Veera Raghavaiah is the elder brother of this defendant’s father Pothuraju. He performed the 2nd marriage of Pothuraju in 1964 and was contemplating to bequeath all his remaining properties by executing a Will in favour of Pothuraju except part of the properties that were settled on his nephews namely Chinta Venkateswara Rao, husband Smt. Chinta Sitamahalakshmi and Jammisetti Hanumantha Rao S/o Chittemma who is the youngest sister of

Jarugu Veera Raghavaiah. This defendant, his mother and his sister got filed a suit in O.S.No.34/2004 for partition of the plaint schedule properties on the file of the court. The plaintiff in O.S.No.34/2004 i.e this defendant and other are contending that item Nos 2 to 8 of the plaint schedule properties were acquired by Jarugu Veera

Raghavaiah with his self-exertions. He settled a part of the properties on his nephews. Jarugu Veera Raghavaiah died intestate on 27.09.1976 afflicted with paralysis. His wife Eswaramma inherited the plaint schedule properties being his class-1 heir on his death. Eswaramma also died intestate on 17.05.1981. On her death the plaint schedule properties devolved upon the heirs of her husband i.e late

Jarugu Pothuraju and Bandi Kanakamma who are respectively his brother and sister under section 15(2) of the Hindu Succession Act 1956. By the time of the death of

Jarugu Veera Raghavaiah and his wife Eswaramma Jarugu, Jarugu Pothuraju and bandi Kanakamma only were alive and the remaining four sisters of Veera

Raghavaiah passed away. On the death of Pothuraju i.e this defendant’s father his half share devolved upon his children by his two wives who are alive by the date of his death in 1981. Thus, the plaintiffs 1 to 3 and defendants 1 to 10 in --9--

O.S.No.34/2004 are legally entitled to share the plaint schedule properties they

being co-heirs and tenants in common and they are in joint in possession and enjoyment of the plaint schedule properties.

Chinta Venkateswara Rao being the brother-in-law of defendants 1 and 2 in

O.S.No.34/2004 has been managing the plaint schedule properties and distributing

the income among all the heirs of Veera Raghavaiah and Eswaramma. Prior to filing of the suit, Chinta Venkateswara Rao and his wife Smt.Chinta Sita Mahalakshmi i.e the plaintiffs began depriving the plaintiffs in O.S.No.34/2004 of their legitimate share. Under those circumstances, the plaintiffs in O.S.No.34/2004 were constrained to file a suit seeking partition of the plaint schedule properties into 10 equal shares. The above suit O.S.No.34/2004 is mainly contested by the 11th defendant Smt.Chinta Sitamahalakshmi i.e the 1st plaintiff while the other defendants 1 to 10 in O.S.No.34/2004 have brought into existence two documents alleged to be a Will dated 01.09.1976 said to have been executed by late Jarugu

Veera Raghavaiah and another document purporting to be codicil dated 15.09.1976 said to have been executed by late Jarugu Veera Raghavaiah at a time when Veera

Raghavaiah was not in a sound and disposing state of mind and was bed-ridden.

Subsequently, Jammisetti Hanumantha Rao got filed a suit in O.S.No.423/2006 on the file of Principal Junior Civil Judge’s Court, Eluru against this defendant seeking the relief of permanent injunction from interfering with the plaintiffs possession and enjoyment of the plaint schedule property covered by O.S.No.423/2006. This defendant got filed his written statement in O.S.No.423/2006 with correct state of affairs and the same is coming on for trial. In the said suit O.S.No.423/2006 the plaintiff is basing his claim on the Will date d01.09.1976 and the Codicil dated 15.09.1976 alleged to have been executed by Jarugu Veera Raghavaiah. The said suit O.S.No.423/2006 was transferred to the court and the same was renumbered as O.S.No.85/2012 and the same is pending. As things stand thus Smt. Chinta

Sitamahalakshmi and her husband Chinta Venkateswara Rao ie. The plaintiffs got --10- - filed suit in O.S.No.75/2009 against Jammisetti Hanumantha Rao, Jammisetti

Devendra Veera Raghava Rao and Jammisetti Jethendra on the file II Addl. District

Judge’s Court, Vijayawada praying the court seeking declaration that they are

absolute owners of the plaint schedule properties covered by O.S.No.75/2009 and for a consequential relief of permanent injunction. The said suit O.S.No.75/2009 was transferred to the file of Additional District Judge’s Court, Nuzvid and re- numbered as O.S.No.25/2015. Subsequently on a transfer petition filed this court and the said suit was transferred to the file of the court and renumbered as

O.S.No.170/2016. Chinta Venkateswara Rao the husband of the 1st plaintiff got

filed a suit in O.S.No.283/2009 against Jammisetti Hanumantha Rao, this defendant and his elder sister Smt.Chalamalasetti Lakshmi Savithri @ Sarada seeking partition of the schedule property covered by O.S.No.283/2009 on the file of Principal Senior

Civil Judge’s Court, Eluru and for a permanent injunction restraining the defendants

from interfering with the plaint schedule property covered by O.S.No.283/2009. This defendant got filed his written statement in O.S.No.283/2009 with correct state of affairs and the same is coming on for trial. In the said suit O.S.No.283/2009 the plaintiff is basing his claim on the Will dated 01.09.1976 and the Codicil dated 15.09.1976 alleged to have been executed by Jarugu Veera Raghavaiah. The said suit O.S.No.283/2009 has been transferred to the file of the court and renumbered as O.S.No.9/2017. Late Jarugu Veera Raghavaiah never executed any will or codicil as alleged by the plaintiffs. As a counter blast to O.S.No.34/2004 got filed by this defendant and others, the plaintiffs in O.S.No.85/2012, O.S.No.170/2016 and

O.S.No283/2009 got filed the respective suits with false and untenable allegations.

Though the plaintiffs in O.S.No.170/2016 are well aware about O.S.No.34/2004 got filed by this defendant and others and the 11th defendant in O.S.No.34/2004 got this present suit along with her husband Chinta Venkateswara Rao without showing this defendant, his mother and his elder sister as parties to the suit proceedings intentionally and purposefully with a view to defeat their claim in O.S.No.34/2004 --11- - on the file of the court. The present suit is filed with all false and untenable allegations with a view to support the false plea taken by the plaintiffs and grab the property by hook or crook under the guise of two fabricated documents namely the

Will and Codicil alleged to have been executed by late Jarugu Veera Raghavaiah.

6. Basing on the above pleadings, the following issues are settled for trial:

1.Whether the plaintiffs are entitled for the declaration of title as prayed for?

2.Whether the plaintiffs are entitled for consequential permanent injunction as prayed for?

3.Whether the Will dated 01.09.1976 and executed a Codicil dated 15.09.1976 are true, valid and binding?

4.Whether Kammula Veera Raghavaiah adopted the first defendant?

5.Whether the settlement deed dated 07.09.1973 is true, valid and binding?

6.Whether the settlement deed dated 25.09.1974 is true, valid and binding?

7.To what relief?

7. To substantiate the case of the plaintiff, the 2ndplaintiff himself was examined as PW1 and one Cherukuri Venkateswara Rao who is third party was examined as PW2 and daughter of the plaintiff was examined as PW3 and got marked Exs.A1 to A12. On behalf of the defendant, D1 himself was examined as

DW1 and Kandada Venkata Ramakrishna who is third party was examined as DW2 and D2 was examined as DW3 and got marked Exs B1 to B6.

8. Heard arguments on both sides. The learned counsel for the plaintiff filed written arguments. Perused the material on record.

For better appreciation, it is fit and proper to decide issues 5 & 6 at first instance.

9. ISSUE No. 5 & 6:

To decide the fact in issue it is fit and proper to go through the oral and documentary evidence let in by both the parties. PWs1 to 3 filed their chief affidavit in support of plaintiff plea. DWs1 to 3filed their chief affidavits in support of the defence plea.

--12- -

10. PW1 in his cross-examination deposed that1st defendant is his cousin (son of junior maternal aunt). One Jammisetti Srinivasa Rao and 1st defendant are brothers. He admitted that Kammula Veera Raghavaiah is the senior maternal uncle of himself, 1st defendant and Jammisetti Srinivasa Rao. He admitted that the contents of Ex.A1 is correct. Seetha Mahalakshmi is his wife. He has not issued any notice to 1st defendant prior to filing of suit this suit. He has not issued any notice to 1st defendant informing him that Kammula Veera Raghavaiah executed Ex.A2 codicil subsequent to Ex.A1 Will. Kammula Veera Raghavaiah died in the year 1976.

Kammula Veera Raghavaiah has no children. Jammisetti Hanumantha Rao/1st defendant was being looked after by Kammula Veera Raghavaiah and his wife since his childhood. Kammula Veera Raghavaiah looked after him and 1st defendant as his foster children. He admitted that during the life time of Kammula Veera

Raghavaiah, himself and 1st defendant resided in the house of Kammula Veera

Raghavaiah. Kammula Veera Raghavaiah was carrying on rice mill business. During the life time of Kammula Veera Raghavaiah in his business 1st defendant used to extend his help to Kammula Veera Raghavaiah. He deposed that he also resided in his house to extend his help. He admitted that Kammula Veera Raghavaiah executed settlement deed dated 07.09.1973 in favour of 1st defendant in respect of properties covered by it. He do not know whether it is recited in Ex.B1 that 1st defendant was looked after by Kammula Veera Raghavaiah since the time when 1st defendant was aged about 3 years and out of his love and affection towards himself, he executed

Ex.B1. He do not know whether Ex.B1 was scribed by one Parvatham Venkata Subba

Rao. He admitted that Ex.B1 was scribed by Parvatham Venkata Subba Rao. He deposed that another document was scribed by Parvatham Venkata Subba Rao within one year i.e from the date of execution of Ex.B1 by settling the remaining half share in the property covered by Ex.B1. He has not filed any suit against 1st defendant seeking relief of partition in O.S.No.9/2017. His wife Seetha

Mahalakshmi/1st plaintiff is the daughter of his junior maternal uncle namely Jarugu --13- -

Pothuraju. There is no recital in Ex.A1 that his wife had taken care of Kammula

Veera Raghavaiah and his wife during life time of Kammula Veera Raghavaiah.

He admitted that Kammula Veera Raghavaiah mentioned the reason as to why the bequeathed the properties covered by Ex.A1 in his favour and in favour of 1st defendant. By the time of execution of Ex.A1, LAOP 28/1976 was pending on the file of Senior Civil Judge’s Court, Gudiwada and it was filed by Kammula Veera

Raghavaiah questioning the compensation granted by Government. He admitted that Ex.A1 Kammula Veera Raghavaiah bequeathed compensation to be awarded in

LAOP 28/1976 to his wife Eswaramma and also authorized his wife to prosecute the said case in case of his demise. He admitted that Kammula Veera Raghavaiah executed Ex.A1 in respect of all his properties which were in existence by the time of his death. Ex.A1 was scribed by Parvatham Venkata Subba Rao through Kammula

Veera Raghavaiah. He admitted that the settlement deed was executed in his favour and another settlement deed was also executed in favour of 1st defendant i.e Ex.B1.

Ex.B1 was executed by Kammula Veera Raghavaiah who got it scribed by Parvatham

Venkata Subba Rao. They filed suit only in respect of Ac.0.09 cents of land in

O.A.No.9/2017 seeking partition and also filed the present suit in respect of the property covered by plaint schedule property. He admitted that as per Ex.A1/Will the plaint schedule properties were allotted to his share and share of 1st defendant including the other properties except Ac.0.09 cents covered by S.R.No.76 which was bequeathed in favour of 1st defendant, his brother Srinivasa Rao and himself. He filed suit for Ac.0.09 cents of land against Jarugu Srinivasa Rao and Chalamalasetti

Laxmi Savithri. He admitted that he has not filed partition suit against 1st defendant in respect of other properties covered by Ex.A1. Subsequent to demise of Kammula

Veera Raghavaiah, his wife Eswaramma came on record in LAOP 28/1976 by contending that she got rights over the amount going to be awarded under it as per

Ex.A1 Will. Himself and his wife were present at the time of execution of Ex.A2. He deposed that wife of Kammula Veera Raghavaiah was also present. He admitted --14- - that he did not state in his chief examination about the presence of wife of Kammula

Veera Raghavaiah at the time of Ex.A2. Himself and his wife were present throughout the execution of Ex.A2. Ex.A2 does not disclose the presence of wife of

Kammula Veera Raghavaiah and it also does not contain the signature and thumb impression of Eswaramma. He know that Kammula Veera Raghavaiah engaged counsel. Eswaramma is a marks woman. He do not know who conducted case when

Eswaramma brought on record after demise of Kammula Veera Raghavaiah. He do not know whether petitions were filed by Eswaramma to come on record in

I.A.No.1323/1976 and through one counsel Sri T.V.Sarma. He do not know whether

Eswaramma mentioned in the affidavit filed along with I.A.No.1323/1976 that her husband Kammula Veera Raghavaiah executed Ex.A1 and that there is no reference about Ex.A2 in the affidavit. Eswaramma died in the year 1981. He does not remember who received compensation. He does not remember whether he has participated on her behalf in those proceedings either during her life time or subsequently. He does not remember who received compensation. He do not remember whether he stated in O.S.No.34/2004 as DW2 that there is no documentary proof available with him at present to show that he filed petition for impleading him as a party in LAOP 28/1976 and that since the entire record was destroyed he could not file that record as shown to him the copy of deposition. He do not remember whether he stated in chief examination filed in O.S.No.34/2004 that he received compensation from Senior Civil Judge’s Court, Gudiwada. He do not remember whether he stated the contents of his chief examination in

O.S.No.34/2004 to his counsel for preparation. He was told that Eswaramma was

brought on record in the above referred LAOP. He do not know whether Eswaramma filed Ex.A2 in the above referred LAOP or not. He has not brought it to the notice of court about the execution of Ex.A2 by Kammula Veera Raghavaiah in the above referred LAOP. Eswaramma filed the original of Ex.A1 in the above referred LAOP.

He obtained return of original of Ex.A1 through his counsel from the court but he --15- - do not remember as to when he obtained the same. He did not file any document to show that on particular date he obtained return of original of Ex.A1. He admitted that he sold away his undivided share in Ac.20.00 cents of site in R.S.No.193/4 and

RCC building in favour of 1st defendant. He has not filed any document to show that they got partitioned certain properties covered by Ex.A1. Himself and 1st defendant used to own Sri Krishna theatre at Hanuman Junction. He admitted that they did business jointly relating to the said theater. They availed loan from Andhra Bank to purchase projector from Westrex company, Mumbai. They deposited the site which was standing in the name of his wife and in the name of 1st defendant’s wife towards security in the said bank. He has commenced one industry relating to polythene by availing loan from State Finance Corporation and also working capital from Andhra

Bank. He do not remember the amount of cash that was taken towards working capital. He admitted that he has not filed any document to show that he constructed house 10 cents of land covered by Ex.A1/Will. He admitted that he has not filed any document to show that the original of Ex.A1 was deposited in bank only for the purpose of securing loan for construction of house in the site covered by Ex.A1/Will.

He has not brought it to the notice of bank that Veera Raghavaiah executed Ex.A2 codicil on 15.09.1976. He admitted that the scribe of Ex.A2 did not scribe either the settlement deed executed in his favour or the settlement deed in favour of 1st defendant or Ex.A1. He admitted that Veera Raghavaiah got his document duly scribed through Parvatham Venkata Subba Rao. He got acquaintance with one

Cherukuri Srirama Murthy for the past more than 40 years. He do not know one

RamisettiSrimanarayana. He cannot say whether the signature ie. shown to him on the letter dated 22.03.1983 belongs to Cherukuri Sri Ramamurthy. He admitted that

Ex.A2 shows some corrections in respect of R.S.No.193 and R.S.No.183. Ex.A2 shows that R.S.No.183/5 is corrected as 188/5. There is an overwriting against

R.S.No.193/5. He admitted that there are no initials against corrections and there is no endorsement to that effect by the scribe of Ex.A2; Ex.A2 shows that there is --16- - no reference about Ac.0.10 cents of house site covered by R.S.No.188/5 in Ex.A1.

Ex.A1 shows that Ac.0.10 cents of land covered by R.S.No.188/5 was bequeathed under Ex.A1 to himself and 1st defendant. He admitted that he gave evidence in

O.S.No.34/2004 stating that he came on record in LAOP 28/1976. He do not

remember whether he filed copy of petition basing on which he came on record in

LAOP 28/1976 in the present suit. He do not remember whether he brought it to the notice of the court where LAOP 28/1976 was filed stating that Eswaramma concealed the fact of execution of Ex.A2 codicil by Veera Raghavaiah in the affidavit filed by her in I.A.No.1323/1976 in LAOP 28/1976 and the contents of affidavit are false. He deposed that Veera Raghavaiah died within one month from the date of execution of Ex.A1 i.e in the month of October, 1976. Except Ex.A2 he did not file any other document showing possession of his wife over the schedule property. He admitted that he has not filed any document showing the possession of his wife over the schedule property. He do not know to whom he gave notices on 18.12.2008 and 21.12.2008. By the time of demise of Veera Raghavaiah, himself, 1st defendant and Eswaramma were living under the same roof. He deposed that the 1st defendant while residing under the same roof, getting the food prepared separately for himself and his wife. He admitted that he did not file death certificate of Damarla

Venkateswara Rao. He admitted that he was given 1/3rd share in Ac.0.09 cents of land as shown in Ex.A1. He admitted that defendants 1 to 3 are not the parties to the suit in O.S.No.34/2004; half share was allotted to 1st defendant under Ex.A1 over the plaint schedule properties. He deposed that his wife not in a position to give evidence and so he gave evidence in O.S.No.34/2004. Himself and his wife filed the present suit in O.s.No.170/2016 for declaration and injunction in respect of schedule property covered by Ex.A2/codicil. He filed the suit in O.S.No.9/2017 seeking the relief of partition basing on Will. He got schedule property by way of

Will from Kammula Veera Raghavaiah. Jarugu Veeraiah has five daughters and two sons namely Kammula Veera Raghavaiah and Jarugu Pothuraju. Kammula Veera --17- -

Raghavaiah was given in adoption and he might have been given in adoption by

Veeraiah. One Subbaiah has taken registered adoption deed. Eswaramma is the wife of Veera Raghavaiah who died in the year 1981. He do not whether the maternal grandmother of Eswaramma and the mother of Jarugu Veeraiah are own sisters. He do not know whether Chellayamma is the wife of Subbaiah. He admitted that whether Kammula Subbaiah has no male children. He do not know whether at the instance of Kammula Chellayamma, Jarugu Veera Raghavaiah was looked after as a foster son by Kammula Chellayamma. He do not know whether Veera

Raghavaiah was being called as Kammula Veera Raghavaiah as Chellayamma looked after him as a foster son. He do not know whether Kammula Veera Raghavaiah and

Eswaramma become brother and sister had Chellayamma taken Jarugu Veera

Raghavaiah in adoption as contended by him. He admitted that remaining items i.e item Nos 2 to 8 of the properties covered by O.s.No.34/2004 are the self acquired properties of Veera Raghavaiah. He do not know whether Veera Raghavaiah carried on Rice mill business along with Babuji Rao at Bapulapadu. He admitted that the name of 1st wife of Pothuraju is Savitramma; after her demise Pothuraju married 4th defendant. Savitramma gave birth to one daughter and two sons namely Nageswara

Rao and Vijaya Ram Mohana Rao. Both the sons of Savitramma are no more. He do not know the names of parents of Eswaramma. He do not know whether one

Chellayamma and Kammula Subbaiah are the parents of Eswaramma. He admitted that he is the eldest person in age among the relatives of Veera Raghavaiah. He admitted that Ex.A1 is an unregistered Will. It is not even notarized. Subsequently

Veera Raghavaiah executed another document and so it is called as codicil. Ex.A2 is dated 15.09.1976. One Cherukuri Sriramamurthy and Damarla Venkateswara Rao attested Ex.A2 and it was scribed by one Subrahmanyam. He do not remember the surname of Subrahmanyam. Under Ex.A1 he was given half share and Hanumantha

Rao was given half share in Ac.4.00 cents of land in addition to other properties.

Subsequently under Ex.A2 the remaining half share that was allotted to --18- -

Hanumantha Rao in Ac.4.00 cents of land was given to Seethamahalakshmi who is the daughter of younger brother of Veera Raghavaiah namely Pothuraju and who is his wife. Ex.A2 was neither registered nor notarized. He do not know whether the attestors and scribe of Ex.A2 suggested him to register Ex.A2 or not. Veera

Raghavaiah died in the year 1976 and he do not remember the month. They have not given any notice to the family members of Pothuraju informing them that they acquired rights under Exs.A1 and A2. No paper publication was made by him with reference to Exs.A1 and A2. He deposed that by the time of execution of Ex.A1 there were five or six persons i.e Kammula Eswaramma, Jammisetti Hanumantha

Rao, Jammisetti Sesidevi, Parvatham Venkata Subba Rao, Nakka Rama Rao,

Kandada Venkatacharyulu, Chinta Seetha Mahalakshmi who is his wife and himself were present. Nakka Rama Rao is a rice mill driver in the rice mill of Veera

Raghavaiah. He admitted that he is only a signatory. Veera Raghavaiah called

Kandada Venkatacharyulu on the date of execution of Ex.A1 who is a clerk in the rice mill of Veera Raghavaiah. He do not know the reason as to why the Veera

Raghavaiah obtained the signatures of two attestors of Ex.A1 instead of obtaining the signatures of his relatives as attestors. Raghavaiah himself secured the presence of scribe of Ex.A1 i.e Parvatham Venkata Subba Rao who is a document writer. He do not know whether Eswaramma questioned her husband Veera Raghavaiah as to whether he made any arrangement under Ex.A1 to her. He did not advise Veera

Raghavaiah to bequeath some property in favour of his wife i.e Eswaramma. At the time of execution of Ex.A1, himself, 1st defendant, wife of 1st defendant and his wife

Eswaramma were present. Under Ex.A1 no property was conferred in favour of

Eswaramma by her husband. He did not advise Veera Raghavaiah on 15.09.1976 to bequeath some property in favour of his wife Eswaramma. He admitted that

Eswaramma who is the wife of Veera Raghavaiah died in the year 1981. He did not file any documentary proof to show that the health condition of Veera Raghavaiah was good at the time of execution of Exs.A1 and A2. Till the demise of Eswaramma, --19- - himself and his wife looked after the welfare of Eswaramma. He do not know whether the extent of plaint schedule property in O.S.No.9/2017 is only Ac.0.06 cents of land on ground but not Ac.0.09 cents of land.

11. Cherukuri Venkateswara Rao who is third party was examined as PW2.

In his cross examination he admitted that his father was close associate of 2nd plaintiff about 40 years but not 50 years. He has not filed any documentary proof to show that his father was in Coma at about six months prior to his demise. He has not seen the Will/Ex.A1 that was executed by Kammula Veera Raghavaiah. He do not know the contents of Ex.A1 as he was present in Varandah. He do not know whether one Damarla Venkateswara Rao and Nandiwada Venkata Subrahmanya

Sastry are the close associates of PW1. He know 1st defendant/Jammisetti

Hanumantha Rao. He admitted that Kammula Veera Raghavaiah fostered and looked after 1st defendant since his childhood by educating him. He also performed the marriage of 1st defendant. The 1st defendant used to extend his assistance to

Veera Raghavaiah in his business affairs and his financial affairs. At about 20 years ago, his father signed on the document at the time of registration of partition deed.

Earlier he also signed number of times on several papers which are in possession of his elder brother Rajendra Babu. He admitted that the document i.e shown to him was written by his father including the signature. He admitted that his father asked

PW1 to advance money to one Ramiseety Srimmanarayana; the signature on Ex.B5 which relates to his father is with free flow whereas the signature on Ex.A2 appears to be written not freely and there is a slightest different in between two signatures.

He admitted that there is variation of signatures on Ex.A4, Ex.A2 and Ex.B5. He know Damarla Venkateswara Rao and Nandiwada Venkata Subrahmanya Sastry since his childhood. He got acquaintance with 2nd plaintiff/PW1 since his childhood and he is in touch with PW1 regularly. He admitted that by the time of execution of Ex.A2 he was aged about 18 years. He executed the same in his house in the hall at Bapulapadu. By that time, Raghavaiah, Eswaramma Venkateswara Rao, his wife, --20- - 1st defendant and his wife, Damarla Venkateswara Rao, his father, the writer namely

Subrahmanya Sastry were present. He was present in Varandah. Ex.A2 consists of single sheet. The presence of his father at the time of execution of Ex.A2 was visible to him in the Varandah. He do not know who narrated the contents of Will to the executor. It was executed within half an hour or forty minutes. He know Jarugu

Pothuraju. He do not know one Bandi Kanakamma. The draft of Ex.A2 was also prepared at the house of Veera Raghavaiah. He do not know the other cases filed in this court. He do not know the details of case filed in O.S.No.34/2004 in the court for which he brought his father to court who gave evidence in that case. His father got acquaintance with Chinta Venkateswara Rao since long time prior to his death. He do not know whether 1st defendant was taken in adoption by Veera

Raghavaiah. Raghavaiah had no children. He do not know whether the school certificates of Hanumantha Rao and Chinta Venkateswara Rao show their father name as Veera Raghavaiah. His father is in the habit of attesting documents.

Sometimes his father used to ask him to take him whenever he intends to attest the documents.

12. Chinta Lakshmi Raghavan who is daughter of PW1 examined as PW3.

In her cross examination she deposed that Jammisetti Devendra Veera Raghava

Rao is her cousin who is elder to her. She admitted that the property in respect of which her father executed settlement deed/Ex.A5 in her favour has no connection with the suit schedule property. She is not party to Ex.A10/partition deed and the schedule property is not covered by Ex.A10. She admitted that Ex.A12has no connection with the suit schedule property. She admitted that Ex.A1 does not contain recital that his mother Chinta Seetha Maha Lakshmi has taken care of Veera

Raghavaiah; as per Ex.A1 all the properties were bequeathed in favour of

Hanumantha Rao and his father Chinta Venkateswara Rao except Ac.0.09 cents which was bequeathed in favour of Chinta Venkateswara Rao, J.Hanumantha Rao and J.Srinivasa Rao.

--21- -

13. DW1 in his cross-examination deposed that he did not file any registered partition deed between himself and Chinta Venkateswara Rao. To his knowledge the surname of Veera Raghavaiah was Kammula but not Jarugu. The surname of biological father of Veera Raghavaiah was Jarugu. The said Veerayya has two sons namely Veera Raghavaiah and Pothuraju. He admitted that himself and Chinta Venkateswara Rao never brought the above said land acquisition proceeding to the knowledge of the defendants 4 to 6. On 14.12.2004 himself and

Chinta Venkateswara Rao partitioned all the remaining properties of Veera

Raghavaiah. The partition deed dated 14.12.2004 was not registered. He admitted that he is aware of the suit proceedings in O.S.No.34/2004 before the court filed by the defendants 4 to 6 seeking partition of properties wherein the wife of Chinta

Venkateswara Rao namely Chinta Seetha Mahalakshmi is the 11th defendant.

He admitted that all the properties belongs to Veera Raghavaiah is his self acquired properties which are shown in O.S.No.34/2004 pending on the file of this court. He admitted that Veera Raghavaiah settled two properties one each to him and Chinta

Venkateswara Rao by virtue of two settlement deeds. He admitted that as on the date of death of Veera Raghavaiah and his wife Eswaramma, his brother Pothuraju and his younger Bandi Kanakamma were alive. The other four sisters of Veera

Raghavaiah predeceased him. He admitted that Eswaramma died on 17.05.1981.

Eswaramma had executed a Will bequeathing her properties to Chinta

Venkateswara Rao. He admitted that he never mentioned in any of his pleadings in the suits that about the execution of Will by Eswaramma in favour of Chinta

Venkateswara Rao. He admitted that the partition deed of the year 2014 and settlement deeds under Exs.A3 and A4 executed by him favour of the defendants 2 and 3 are executed after filing the suit in O.S.No.34/2004. There were cordial relations between Veera Raghavaiah and his brother Pothuraju. He deposed that he know the plaint schedule property is Ac.3.75 cents of land in Bapulapadu village.

The said land was the absolute property of Kammula Veera Raghavaiah. The plaint --22- - schedule property Ac.3.75 cents is two items in two different survey numbers.

Kammula Veera Raghavaiah as per his Will dated 01.09.1976 bequeathed the schedule land in favour of him and the 2nd plaintiff. The 1st plaintiff alleged that

Kammula Veera Raghavaiah executed a codicil dated 15.09.1976 that the half share bequeathed to him under Ex.A1 Will was modified and bequeathed the same to her under Ex.A2/Codicil. He admitting and accepting Ex.A1/Will dated 01.09.1976 and disputing Ex.A2/Codicil. There is no registered between himself and 2nd plaintiff regarding the plaint schedule property. The defendants 2 and 3 are his sons. The defendants 4 and 6 are the children of 5th defendant. Eswaramma is the wife of

Kammula Veera Raghavaiah. The plaintiffs were resided in the house of Kammula

Veera Raghavaiah and Eswaramma till their demise. He admitted that defendants 4 to 6 filed a suit in O.S.No.34/2004 on the file of this court for partition of all the properties of Kammula Veera Raghavaiah. He filed I.A.No.2218/2006 in

O.S.No.34/2004 to implead him as 12th defendant and the same was dismissed. He

has not preferred any revision against the orders in I.A.No.2218/1006. He has gone through the contents of the plaint, written statements and also the orders passed in O.S.No.34/2004 and he filed I.A.No.2218/2006. He filed O.S.No.423/2006 on the file of Junior Civil Judge’s Court, Eluru against the 4th defendant for permanent injunction respect of Ac.0.09 cents of site at Appanaveedu village and Ac.4.30 cents in Bapulapadu village. The said suit was transferred to this court and renumbered as O.S.No.85/2012. He has not joined the 2nd plaintiff as party to the said suit.

According to him, the 2nd plaintiff also entitled a share in item Nos 1 and 2 of the plaint schedule property in O.s.NO.85/2012. The original of Ex.A1/Will dated 01.09.1976 was filed into court in LAOP 28/1976 on the file of Sub-Court, Gudivada by Smt.Kammula Eswaramma. She died in the year 1981. The 2nd plaintiff performed the obsequies of Kammula Veera Raghavaiah. There are no disputes in between himself and the plaintiffs regarding the properties of Kammula Veera Raghavaiah.

Himself and 2nd plaintiff entered into registered partition deed in respect of --23- - properties got by them from Kammula Veera Raghavaiah. He admitted that the 2nd plaintiff gave evidence in LAOP 28/1976 was received by the 2nd plaintiff from the court at Gudiwada. He has not mentioned anywhere as to how he got custody of

Ex.B5. He deposed that he found Ex.B5 is letter in rice mill records. He admitted that till 2004 the rice mill is joint between himself and the plaintiff and from 2004 onwards till the registered partition deed in the year 2014 he run the rice mill exclusively for himself. He deposed that there is no partition of Ac.0.09 cents between himself, his brother Srinivasa Rao and 2nd plaintiff so also there was no document with him to show that Ac.0.03 cents of Jammisetti Srinivasa Rao was partitioned between himself and the 2nd plaintiff. Under Ex.A1/Will dated 01.09.1976

Kammula Veera Raghavaiah has not bequeathed any immovable properties to his wife Eswaramma except the compensation awarded for the land acquired by the

Government for location of Hanuman Junction Bus stand. Eswaramma claimed compensation from the court in LAOP 28/1976 in pursuance of Ex.A1/Will. There is no document with him to show that he was adopted by Kammula Veera Raghavaiah.

He admitted that in Ex.A1/Will dated 01.09.1976 and Ex.B1/settlement deed dated 07.09.1973, there are recitals that he was adopted Kammula Veera Raghavaiah. He admitted that the extent of Ac.0.09 cents is the property bequeathed by Kammula

Veera Raghavaiah under Ex.A1/Will; as per the said Ex.A1/Will, himself, his brother

Srinivasa Rao and the plaintiff are entitled to an equal share in the said Ac.0.09 cents. He admitted that he has not taken any steps questioning the settlement deed executed by 6th defendant and also seeking partition of the schedule property between himself and the 2nd plaintiff. He has not issued any notice to defendants 4 and 6 about the settlement deed executed by 6th defendant on 12.03.2004 in favour of 4th defendant. He has not asked for declaration for his title over the said Ac.0.09 cents in O.S.No.85/2012. He has not obtained any authorization from the 2nd plaintiff regarding the Ac.0.09 cents. Item No.2 in O.S.No.85/2012 is also joint property in between himself and the 2nd plaintiff. There is no authorization to file --24- - the said suit on behalf of the 2nd plaintiff regarding item NO.2 in O.S.No.85/2012.

He has not mentioned in the said suit that the relief sought is only in respect of his share in item Nos 1 and 2 of the plaint schedule property in O.S.No.85/2012. He admitted that original of Ex.A1/Will was filed in O.S.No.28/1976 on the file of Sub-

Court, Gudiwada by Smt.Eswaramma as the compensation amount for the land acquired was bequeathed to her by Kammula Veera Raghavaiah. Ex.A10/partition deed dated 10.01.2014 is regarding the property settled by Kammula Veera

Raghavaiah in favour of himself and the plaintiff but not for the properties covered by Ex.A1/Will. There is no reference of Ex.A1/will in Ex.A10 partition deed dated 10.01.2014. Chinta Seetha Mahalakshmi is the daughter of Jarugu Pothuraju natural brother of Kammula Veera Raghavaiah. He deposed that himself and Chinta

Venkateswara Rao are the children of two natural sisters of Kammula Veera

Raghavaiah. Since the date of marriage of Chinta Seetha Mahalakshmi with the plaintiff, they were resided with Kammula Veera Raghavaiah and Eswaramma. His wife Sasi Devi is not related to Kammula Veera Raghavaiah. Chinta Seetha

Mahalakshmi is blood relation to Kammula Veera Raghavaiah. He admitted that there is no pattadar pass book and title deed in his favour and also in favour of

Chinta Venkateswara Rao for the said Ac.3.75 cents. He has not paid land revenue for the said land since 1976 to till today. There is no registered partition deed between himself and Chinta Venkateswara Rao regarding Ac.3.75 cents of land. He admitted that on the date of execution of two settlement deeds by him in favour of his sons the suit in O.S.No.34/2004 is pending and injunction granted is in force;

O.S.No.34/2004 filed by the defendants 4 to 6 is not collusive suit filed by them in

collusion with the plaintiffs 1 and 2. The plaintiffs 1 and 2 got issued registered legal notices dated 18.12.2008 and 21.12.2008 to the Tahsildar, Bapulapadu and RDO,

Nuziveedu. He admitted that the Government Handwriting expert gave an opinion that the signatures Exs.A1 and A2 are tallied with the signatures on the registered gift deed dated 25.09.1974 and are that of Kammula Veera Raghavaiah. He did not --25- - file any application to send Ex.A2/Codicil to the handwriting expert. He admitted that Eswaramma has nothing to do with the property covered by Ex.A2/Codicil and the same is subject matter in LAOP 28/1976. He purchased the undivided share of the 2nd plaintiff in Ac.0.20 cents of site in R.S.No.193/4 and the RCC building from the 2nd plaintiff. Himself and the 2nd plaintiff jointly borrowed loan from Andhra

Bank, Hanuman Junction branch for purchase of projector and etc., for cinema hall.

He admitted that the original of Ex.A1/Will dated 01.09.1976 was deposited in

Andhra Bank, Hanuman Junction Branch. Himself and 2nd plaintiff has not created any mortgages over the plaint schedule property in favour of Andhra Bank,

Hanuman Junction Branch.

14. Kandada Venkata Ramakrishna who is third party was examined as

DW2. In his cross examination he deposed that he does not know the details of the plaint schedule properties. He deposed that his father used to work as a clerk in the

Mill of Kammula Veera Raghavaiah he has seen him; through his father he came to know the details that the plaintiff and Chinta Venkateswara Rao are the nephew of

Veera Raghavaiah and they were treated as fostered/adopted sons of Veera

Raghavaiah. He did not file any proof or record showing that the plaintiff and Chinta

Venkateswara Rao was treated as fostered/adopted sons of Late Veera Raghavaiah.

He denied the suggestion that the original of Ex.A1 was forged, fabricated and concocted documents brought into existence in collusion of the plaintiff,

Venkateswara Rao, attestors and scribe of Ex.A1 to gain wrongfully.

15. Defendant No.4 was examined as DW3. In his cross examination he deposed that 5th defendant is his mother; 6th defendant is his elder sister. He admitted that the plaintiff filed suit against defendants 1 to 3. The plaint schedule property is an extent of Ac.3.75 cents. The plaint schedule property is one of the item in O.S.No.34/2004 on the file of this court. They have obtained injunction order in O.S.No.34/2004 not to alienate the schedule property. 1st defendant moved an application Order 1 Rule 10 in O.S.No.34/2004 which was dismissed by the Court.

--26- -

The 1st defendant executed two separate gift deed in favour of two sons who are defendants 2 and 3 in the year 2006. After having knowledge of the execution of gift settlement deed in favour of defendants 2 and 3 they have not added them as parties in O.S.No.34/2004. They have not moved any suit against defendants 1 to 3 after having knowledge of the documents executed by 1st defendant in favour of defendants 2 and 3. He admitted that 1st plaintiff filed Will dated 01.09.1976 and codicil dated 15.09.1976. They questioned in the rights as well as signatures of Will and Codicil and send them for expert opinion; the expert opinion that the signatures are that off the testator signature. He admitted that the deceased Kammula Veera

Raghavaiah has not executed any document in favour of himself, his mother or his sisters in respect of the schedule properties. The plaint schedule properties referred in the suit as well as O.s.34/2004 are self acquired properties of Kammula Veera

Raghavaiah. He admitted that the 2nd plaintiff filed O.S.No.9/2017 against himself, his mother and sister with regard to Ac.0.09 cents of house site. During the life time of Kammula Veera Raghavaiah, he executed two registered settlement deeds in favour of 2nd plaintiff and 1st defendant. They pleaded in O.S.No.34/2004 that items 2 to 8 of the plaint schedule in O.S.No.34/2004 are the absolute properties of

Kammula Veera Raghavaiah. He admitted that they have pleaded that the said properties were purchased with his exertions. Till the death of Kammula Veera

Raghavaiah, he stayed in his own house at Hanumanjunction. He admitted that their family and Kammula Veera Raghavayya’s family used to reside in separate houses.

He do not know when Kammula Veera Raghavaiah shifted his residence to the house at Hanumanjunction. Hanumantha Rao and Venkateswara Rao used to reside at

Kammula Veera Raghavayya’s house. He deposed that at the age of 10, they came to the house of Raghavayya’s house for eking their livelihood and doing some work and they used to come to their house also. He admitted that Kammula Veera

Raghavaiah performed their marriages. He deposed that Pothuraju who is another maternal uncle and Raghavaiah jointly performed their marriages. Pothuraju expired --27- - in the year 1982. Chinta Sita Mahalakshmi is the daughter of Pothuraju through his 1st wife. He do not know when the 1st wife of Pothuraju expired. He do not know when his mother got married with his father after death of his 1st wife. He admitted that Raghavaiah executed a settlement deed in favour of plaintiff and 1st defendant with regard to the house at Hanumanjunction giving equal shares. He deposed that he has gone through the document filed by the plaintiff and 1st defendant in this suit. He admitted that the properties mentioned in Ex.B1 were not the schedule property in O.S.No.34/2004 and they are claiming any right, title over the properties covered under Ex.B1. He admitted that they have not filed any proof or record showing that they are in possession, enjoyment of above properties after the death of his father and paternal aunt. There are five shops in the plaint schedule properties. He deposed that the plaintiff is receiving the rents from the tenants of the shop. He deposed that original of Ex.A1 is a fabricated document. He denied the suggestion that Ex.A1 is the last Will of the testator.

16. To prove the contention of the plaintiff, the plaintiff filed Exs.A1 to

A12. Ex.A1 is the certified copy of Will dated 01.09.1976 (he filed original of Ex.A1 in O.S.No.34/2004). Ex.A2 is the certified copy of Codicil dated 15.09.1976 executed by Kammula Veera Raghavaiah (he filed original of Ex.A2 in O.S.No.34/2004). Ex.A3 is the certified copy of Gift deed dated 19.05.2006 executed by 1st defendant in favour of 2nd defendant. Ex.A4 is the certified copy of gift deed dated 19.05.2006 executed by 1st defendant in favour of defendant No.3. Ex.A5 is the office copy of legal notice dated 18.12.2008. Ex.A6 is the office copy of reply notice dated 21.12.2008. Ex.A7 is the certified copy of deposition of Cherukuri Sri Rama Murthy in O.S.No.34/2004. Ex.A8 is the certified copy of deposition of Dhamarla

Venkateswara Rao in O.S.No.34/2004. Ex.A9 is the certified copy of registered settlement deed dated 19.06.2002. Ex.A10 is the Photostat copy of registered partition deed dated 10.01.2014. Ex.A11 is the photocopy of death certificate of --28- -

Cherukuri Sreerama Murthy. Ex.A12 is the certified copy of order of settlement officer, dated 09.01.1969.

17. To prove the contention of the defendant, the defendant filed Exs.B1 to Ex.B6. Ex.B1 is the settlement deed executed by Kammula Veera Raghavaiah in favour of 1st defendant. Deposition in O.S.No.34 of 2004. Ex.B3 is the signature in certified copy of deposition in LAOP 28/1976. Ex.B4 is the sale deed executed by 2nd plaintiff in favour of 1st defendant. Ex.B5 is the letter dated 22.03.1983 addressed to PW1 by the father of PW2. Ex.B6 is the certified copy of vakalt affidavit and petition of Kammula Eswaramma along with docket order in I.A.No.1323/1976 in LAOP 28/1976 on the file of Sub-Court, Gudivada.

18.Issue No.1: As the plaintiff prove their case by preponderance of probabilities, they are entitled for the relief of declaration as prayed for.

19. Issue No.2: As issue No.1 is settled infavour of plaintiffs they are entitled for consequential relief as prayed. Admitted facts in this case the relationship of both parties so also with the deceased Jarugu Veeraraghavayya. It is also admitted that the properties of Veera Raghavaiah are his self acquired property.

20. It is also admitted that plaintiffs and 1st defendant were residing also with Veera Raghavayya and his wife. In fact since child hood 2nd plaintiff and 1st defendant were grownup by Veera Raghavayya. Himself along with her wife

Eswaramma got performed the marriage of 1st plaintiff with 2nd plaintiff and they remained with them. The contention of 1st defendant admitting the above facts and also admitting the execution of will dated 01.09.1976, settlement deed, dated 07.09.1973 25.09.1993 in favour of 1st defendant and 2ndplaintiff. Denying the execution of codicil which is in favour of 1st plaintiff.

--29- -

21. Defendants 4 to 6 contended that as they are the 2nd class heirs who are entitle for the properties of J.V.Raghavayya who died intestate. His wife also died intestate the property of Veera Raghavayya reverse back to the 2nd class heirs under section 15(2) of Hindu Successi9on Acct, 1956.

22. Even according to their plea J.V.Raghavayya performed the 2nd marriage of Pothuraju in the year 1964 and was contemplating to bequeath all his remaining properties by executing a will in favour of Pothuraju except part of the properties that were settled on his nephews namely Chinta Venkateswara Rao and

Jammisetti Hanumantha Rao. From this pleading it could be understood that defendants are not denying the execution of settlement deed by Jurugu

Veeraraghavayya. Hence the issue No.5 & 6 are settled accordingly.

23. Issue No.4: The evidence goes to show that Jarugu

Veeraraghavayya had never adopted any of persons of any family but he fostered the 2nd plaintiff and 1st defendant. Hence this issue is settled accordingly;

24. Issue No.3: As far as 1st defendant who is one of the beneficiary under the Will is admitting the Will but denying the codicil. The other defendants 4 to 6 totally denying. In proof the attestors children were examined to prove the writings of the attestors who are no more but they filed evidence copy of the attestors. But the evidence let in clearly revels that in the earlier proceedings LAOP the Will was considered as proved. Basing on the testators intention, it was executed the compensation of land acquisition was drawn by the wife of testator.

25. Major requirements of proof of Will Sec. 63 mandates that a Will should be attested by Two or more witnesses each of whom has seen the testator sign or affix his mark to it or has seen some other person write it in the presence and over the directions of the testator, or has received from the testator a personal acknowledgment of his signature or mark.

--30- -

26. Three major requirements for Will to be valid. It must be in writing, signed by testator and witnessed by two persons.

27. Reasons for an invalid “Will” It has not been signed properly, its been destroyed or altered; The person who made the Will (testator) was not of sound mind at the time of writing the Will. The testator was put in pressure. The evidence reveals that as the testator intended to give some share (Property) in favour of 1st plaintiff who is looking after/taking care of them as nothing was allotted to her in the earlier occasion he executed codicil within a short span of time when the 1st defendant was benefitted by settlement deed and Will, he admitted the facts. For these facts the wife of the testator was present. It is the intention of the testator, what is the proof required in proof of Will is the same proof for codicil. The defendants 4 to 6 or the plaintiffs in O.S 34/2004 were not allotted any property even during the life time of the testator or his wife. There is no evidence let in showing that they were also seen by the testator or they have seen the testator during old age. The contention that the testator was effected with paralysis prior to death does not have any proof or record. Mere contention cannot be throw doubt even according to them as the testator died without any testamentary document, they are entitled under Sec. 15(2) does not appear to be plausible plea to consider.

When the 1st defendant is admitting the Will and the contents therein which was already entertained as he has not taken any legal steps to question the codicil, he is estopped from the execution of the contents of codicil.

28. This court feels that at this juncture it is fit and proper to take assistance of an experts opinion. The evidence clearly reveals that the alleged documents will codicil (Settlement deed, questioned documents) were suit for expert opinion though an experts opinion cannot be the basis for deciding a fact in issue the court can consider the experts opinion where there is no direct and clear evidence and when there is a dilemma whether proved or disproved. Moreover though the parties fails to examine the court can take Judicial notice of the fact.

--31- -

None of the parties tried to call for the expert to record evidence, but it is clear even from the admissions of the witnesses that will and codicil were executed by the testator and the signature of both the documents failed with the settlement deed.

When the intention is of the testator is very clear as to implement the same according to his wishes, this court has no hesitation to decide that will and codicil are proved. Hence this issue is decided accordingly.

29. In the result:- the suit is decreed without costs by declaring that the plaintiffs 1 and 2 are the absolute owners of the plaint schedule property having right, title and interest over the plaint schedule properties. The defendants 1 to 3 are hereby restrained from ever interfering with the peaceful possession and enjoyment of the plaintiffs 1 and 2 over the plaint schedule property in any manner.

(As no relief is claimed against defendants 4 to 6). No order against defendants 4 to 6 accordingly.

Typed to my dictation by Stenographer directly on computer, corrected and

pronounced by me in the open court, this the 18thday of November, 2022.

Sd/-Smt.P.Manga Kumari

VII ADDL.DISTRICT & SESSIONS JUDGE,

ELURU, WEST GODAVARI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:- FOR DEFENDANT:-

PW1:Chinta Venkateswara Rao DW1:J.Hanumantha Rao

PW2:Cherukuri Venkateswara Rao DW2:K.Venkata Ramakrishna

PW3: Chinta Lakshmi Raghavan. DW3:J.Srinivasa Rao

DOCUMENTS MARKED

FOR PLAINTIFF:-

Ex.A1 Certified copy of Will dated 01.09.1976 (he filed original of Ex.A1 in O.S.No.34/2004.

Ex.A2 Certified copy of Codicil dated 15.09.1976 executed by Kammula Veera Raghavaiah (he filed original of Ex.A2 in O.S.No.34/2004).

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Ex.A3 Certified copy of Gift deed dated 19.05.2006 executed by 1st defendant in favour of 2nd defendant

Ex.A4 Certified copy of gift deed dated 19.05.2006 executed by 1st defendant in favour of defendant No.3

Ex.A5 Office copy of legal notice dated 18.12.2008

Ex.A6 Office copy of reply notice dated 21.12.2008.

Ex.A7 Certified copy of deposition of Cherukuri Sri Rama Murthy in

O.S.No. 34/2004.

Ex.A8 Certified copy of deposition of Dhamarla Venkateswara Rao in

O.S.No.34/2004.

Ex.A9 Certified copy of registered settlement deed dated 19.06.2002.

Ex.A10 Photostat copy of registered partition deed dated 10.01.2014.

Ex.A11 Photocopy of death certificate of CherukuriSreerama Murthy.

Ex.A12 Certified copy of order of settlement officer, dated 09.01.1969

FOR DEFENDANT:

Ex.B1 Settlement deed executed by Kammula Veera Raghavayya in favour of 1st defendant.

Ex.B2 Deposition in O.S.No.34 of 2004.

Ex.B3 Signature in certified copy of deposition in LAOP 28/1976.

Ex.B4 Sale deed executed by 2nd plaintiff in favour of 1st defendant.

Ex.B5 Letter dated 22.03.1983 addressed to PW1 by the father of PW2.

Ex.B6 Certified copy of vakaltaffidavit and petition of Kammula Eswaramma along with docket order in I.A.No.1323/1976 in LAOP 28/1976 on the file of Sub-Court, Gudivada.

Sd/-Smt.P.Manga Kumari,

VII ADDL.DISTRICT & SESSIONS JUDGE,

ELURU, WEST GODAVARI.

1

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU

IN THE COURT OF THE I ADDITIONAL DISTRICT JUDGE,

WEST GODAVARI :: ELURU

Present:- Smt. P. Manga Kumari, I Additional District Judge, Eluru

Thursday, this the 27th day of April, 2023

Original Suit No.08/2007

Between:

1.Thota Bhoga Rao.

2.Batchu Kanakamba. …..Plaintiffs

and

1.Kurapati Kutumba Rao (Died).

2.Kurapati Sriramakrishna (Died).

3.Batchu Lakshmikantham.

4.Mutyala Veera Venkata Satyanarayana.

(Amended as per order in IA.317/2012 in OS.8/2007, dated 27.07.2012.)

5.Kurapati Subba Lakshmi.

6.Kurapati Sri Krishna Chaitanya.

7.Kurapati Venkata Satyanarayana Murthy.

(Defendants 5 to 7 were added as L.Rs. of D-2 as per the orders in

IA.No.333/2020, dated 18.01.2023.)

This suit coming on 17-04-2023 for hearing before me in the presence of

Sri M.Lakshman Kumar, Advocate for Plaintiffs and Sri S.V.R. Gandhi, Advocate for the Defendants 4 to 7, and 3rd Defendant is remained exparte and the Defendants 1 and 2 died during the pendency of the suit, and upon hearing and considering entire material on record, having stood over for consideration till this day, this

Court delivered the following:

J U D G M E N T

Originally suit was filed by the plaintiffs against the defendants 1 to 4 praying the court to pass a decree in their favour against the defendants;

(a) Declaring that the 1st plaintiff is the absolute owner for the plaint schedule property; (b) Direct the defendants 1 to 4 to deliver the vacant possession of the plaint schedule property to the 1st plaintiff; (c) To mesne profits on the plaint 2

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU schedule property from the date of the suit till the date of recovery of possession for the illegal use and occupation of the defendants; and to award costs of the suit.

2)Brief facts of the case are:

The 2nd plaintiff is the grandmother of the 1st plaintiff. The 2nd plaintiff is working in Army Department (Indian Army). The 1st defendant is the father of 2nd defendant. One late Batchu Bhoga Rao is the husband of 2nd plaintiff, who was the absolute owner for the two stairs building in

TS.Nos.719/D, 722 & 728 of Eastern Street, Eluru. The said Bhogarao purchased an extent of sq.yds. 438 in TS.No.722 & 728 of Eastern street, Eluru from one

Kurapati Ramachandrarao and Apparao, sons of Singaiah under a registered sale deed, dated 19.04.1983. Later, he purchased another extent Sq.yds. 85 in

TS.No.719/D of Eastern Street, Eluru from the said Kurapati Apparao under a registered sale deed dated 25.05.1983. Both these above sites are single plat an extent of sq.yds 523 in TS.Nos.719/D, 722 & 728 of Eastern Street, Eluru. In which, the husband of the 2ndplaintiff constructed a two storied building. The same is in his possession and enjoyment till his death, who died on 12.12.1994.

i.Late Bhoga Rao had two wives. At the first instance he married one

Lakshmikantham. As there were no issues through his wife, he again married the 2nd plaintiff herein as his 2nd wife. During his life time the said

Bhoga Rao executed a registered will, dated 10.06.1991 with a sound and disposing state of mind in respect of his properties. In which he allotted the southern side portion in the said building to his 1st wife namely

Lakshmikantham and the northern side portion to his 2nd wife (2nd plaintiff), The said Will, dated 10.06.1991 was his last Will. Even after the death of said Bhogarao also the 2nd plaintiff maintained cordial 3

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU relationship with the said Lakshmikantham. Immediately, after his death the Will of Bhogarao came into force and the said Lakshmikantam and the 2nd plaintiff herein became the absolute owners of the entire building.

ii.Immediately after the death of said Bhogarao, the defendants 1 and 2 got filed several suits by using their associates against the 2nd plaintiff and also against the said Lakshmikantham. All those suits were nothing but money suits. In which, it was alleged that the said Bhogarao borrowed amounts for his Tobacco business. Some of the suits were decreed and some of the suits were dismissed. The defendants 1 and 2 also brought pressure against the said Lakshmikantham and also against the 2nd plaintiff to settle the building of Bhogarao in their favour. For which, the 2nd plaintiff also gave complaints to the police officials.

iii.After the death of Bhogarao, his 1st wife Lakshmi Kantham continued in possession over the above said building. More particularly she used to manage the entire building, even on behalf of the 2nd plaintiff and used to give the share of 2nd plaintiff out of the rents. The same was continued upto year 2005. In the month of September, 2005 the said

Lakshmikantham suddenly disappeared from the building, till that month the said Lakshmikantham paid the share of 2nd plaintiff from out of the rents. Subsequently the defendant came into possession of the entire building. The 2nd plaintiff came to know in her inquiries that the said

Lakshmikantham after receiving some amount from the defendants 1 and 2 delivered possession of the building to them. She came to know that the

Southern side part of the building was settled in favour of the brother-in- law of 2nd defendant by the said Lakshmikantham. But, the 2nd plaintiff is not aware about the transactions taken place in between the said

Lakshmikantham and the brother-in-law of the 2nd defendant, whose name 4

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU was also not known to the plaintiffs. The said Lakshmikantham is not entitled to deliver possession of Northern side part of the 2nd plaintiffs building to the defendants. At present the plaintiffs are making enquiries of whereabouts of the said Lakshmikantham. The defendants are not entitled to squat over the plaint schedule building.

iv.If any sham and nominal deeds brought into existence with the active assistance of said Lakshmikantham, in respect of the Northern part of the building on favour of the defendants or their men, the same will not bind the rights of 2nd plaintiff. Because she obtained absolute rights over the said Northern side part of the building by virtue of her husband’s registered Will dated 10.06.1991. The defendants are no way concerned with the plaint schedule property. They are not entitled to squat over the schedule property without any semblance of rights. While it was so, out of love and affection the 2nd plaintiff got executed a registered settlement deed dated 29.09.2006 in favour of the 1st plaintiff in respect of rights over the plaint schedule property. By virtue of the same the 1st plaintiff became absolute owner for the plaint schedule building. The 1st plaintiff and as well as the 2nd plaintiff tried to vacate the defendants through well meaning elders namely P. Suryaprakasarao and K. Polari, but, in vain. Hence, both the plaintiffs got issued legal notice dated 06.10.2006 to the defendants with a demand to vacate and handover the plaint schedule property within one month of receipt of the legal notice. The 1st defendant having received the said notice, kept quiet. The 2nd defendant got managed the postman and got it returned with a false endorsement that the addressee not in town continuously for 7 days.

v.During his life time the husband of 2nd plaintiff used to pay the property tax to the entire building to Eluru Municipality as tax was assessed 5

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU for the same in his name. Subsequently, the said lakshmikantham used to pay the property tax in the name of her late husband. Without having any semblance of right the defendants are simply squatting over the schedule property. Hence, this present suit for recovery of possession and declaration.

vi.During the pendency of the suit proceedings, the plaintiffs 1 and 2 came to know that the name of one Mutyala Veera Venkata Satyanarayana is mutated in Municipal records and property tax for the schedule building is being paid in the name of said Veera Venkata Satyanarayana. The said

Satyanarayana is a servant under 2nd defendant. The 2nd defendant with a malafide intention got mutated the name of his servant for municipal records by managing the municipal authorities. The said Veera Venkata

Satyanarayana is a name lender at the instructions of 2nd defendant. The schedule property is in illegal occupation of the 2nd defendant.

4th defendant Mutyala Veera Venkata Satyanarayana is a proforma party, but proper and necessary to adjudicate the dispute in an effective manner.

3) Written statement filed by the defendants 1 and 2 separately specifically denying the plaint allegations further contending that the 1stdefendant happened to take lease of the ground floor of the building from the 3rd defendant for a period of 5 years covered by Registered Lease dated 31.10.1996. The 2nd plaintiff has not made any claim over the property during the currency of the lease till he delivered the property to the 3rd defendant in or about 2005. After the period of lease 1stdefendant continued possession on same terms, till he delivered the property to the 3rd defendant. The 1stdefendant is not aware of the complaint said to have been given by the 2nd plaintiff to the Police Officials, as no such Police Officials ever contacted this defendant and made any enquiry. Except of the lessee of the ground floor under the above registered lease deed, the 6

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU 1st defendant, thereafter never in the possession. Defendants are not in possession of the plaint schedule property and thus the allegation of squatting over the plaint schedule property by them does not arise at all. The existence of

Will said to have been written by Batchu Bhoga Rao was never brought to the notice of the 1st defendant, more so when the 3rd defendant leased out the ground floor of the building covered registered lease deed. Plaintiff should have come forward to make a claim at or during the currency of the lease period and conspicuous non-claim given expression that the Will alleged to have been executed by Bhoga Rao is true, valid and binding 3rd defendant and all other concerned. As the defendants are not in possession of the plaint schedule property, the question of alleged mediation, at the instance of the plaintiffs through P. Surya Prakasa Rao and K. Polari does not arise at all. The 1st defendant is not a necessary and proper party, besides being false frivolous and vexatious against him. The plaintiffs are liable to pay exemplary costs to the 1st defendant and the same is estimated at Rs.5,000/-.

4)The 2nd defendant further contended that the 2nd plaintiff is not at all the legally-wedded wife of (late) Batchu Bhoga Rao. It is learnt that the 3rd defendant in the suits filed against her deposed that the 2nd plaintiff herein is not the wife of Batchu Bhogarao. It is in the Registration records, attested by

Batchu Bhogarao, that the 2nd plaintiff is the wife of Katreddi Ganganna of

Akividu. As such, the so-called registered settlement Deed dated 29.09.2006 executed by the 2nd plaintiff in favor of the 1st plaintiff is void and initio and, as such, the suit is not maintainable under law. As regards the extent of 85 sq. yds., in T.S.No.719/D of Eastern Street, Eluru, it was brought to sale in the execution proceedings by K.V.S.Murthy being minor represented by this 2nd defendant as his guardian. In the court auction held on 01.04.1998, this 2nd defendant, in the 7

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU capacity of guardian of the minor, participated and he was declared as the highest bidder, followed by sale confirmation on 10.06.1998. In pursuance of the sale certificate issued by the execution court, the property was delivered on 20.10.1998 through court. Later attained majority on 01.09.2004, whereupon the property was delivered to him. Thus, he is in possession and enjoyment of the property and paying property tax thereon.

i.The mandatory ingredients are patently opposed to law,

Ex facie, it is not a Will at all. As such, the suit based on the said will is not sustainable under law. The suits filed against the 1st plaintiff and the 2nd plaintiff were decreed after full-fledged trial and that, during the execution proceedings, the 2nd plaintiff deposited the decretal amount in to court. As regards the decree obtained against the 3rddefendant, execution proceedings were taken, wherein the property of 85 sq. yds., was purchased in the court auction etc. This defendant is not in possession of the building. The inconsistent pleading that the 2nd plaintiff came to know that the 3rd defendant handed over the building to defendants 1 and 2 etc., is also not fact oriented and the plaintiffs have to prove the same. The 1st plaintiff is in no way concerned with Bhogarao and the legally-wedded wife is the 3rd defendant. 2nd defendant did not receive any notice. As per the averments in the plaint, Lakshmikantham executed documents in respect of the northern portion of the building. The plaintiffs are not entitled to file the suit against the defendants. The plaintiffs failed to join the persons who obtained the settlement deed from Lakshmikantham, thus, the suit is bad for non-joinder of necessary and proper party to the suit. Bhogarao might have paid the property tax for the building, followed by the 3rd defendant after the demise of Batchu Bhogarao. After delivery 8

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU of the property of 85 sq.yds etc. through court, on mutation in the

Revenue and Municipal Records, taxes were being paid by the owner KVS

Murthy.

ii.The reliefs sought against defendants 1 and 2 are manifestly misconceived, both on fact and in law, and so the suit is not sustainable under law. The suit is highly speculative in nature and it is designed to blackmail the defendants, for obvious reasons, alleged will is not tested in any court of law and it is not acted upon so far. This is a speculative suit filed by the plaintiffs only to cause trouble, inconvenience and loss to defendants 1 and 2. The plaintiffs never issued any notice to the 2nd defendant; more so, the notice dated 06.10.2006. The alleged settlement deed dated 29.09.2006 is not at all valid under law and is null and void. The said settlement deed must be a fabricated and concocted document brought into existence by the plaintiffs only for the purpose of this suit and in order to give a colour of reality to the false Will dated 10.06.1991 set up by the 2nd plaintiff.

5)The 3rd defendant stood as exparte.

6)Written statement filed by the 4th defendant specifically denying the plaint allegations and further contending that the extent of 85 sq. yards and the building therein in T.S.No.719/D of Eastern Street, Eluru, it was brought to sale in the execution proceedings by K.V.S. Murthy being minor represented by 2nd defendant as his guardian. In the Court auction held on 1-4-1998, the 2nd defendant participated and he was declared as highest bidder, followed by sale confirmation on 10-6-1998. In pursuance of the sale certificate issued by the executing court, the property was delivered on 20-10-1998 through Court. In pursuance of a decree in O.S.No.145/1996 an extent of 438 sq. yards and the 9

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU building therein in T.S.No.722 and 728 of Eluru Muncipality was put to sale and the Addl. Senior Civil Judge’s Court, Eluru conducted auction on 17-9-2001 and the fourth defendant participated in the said auction and the Court knocked down the bid in favour of the fourth defendant being the highest bidder and the Court sale held on 17-9-2001 was confirmed on 21-12-2001 and issued sale certificate in favour of the 4th defendant for 438 sq. yards. Later in pursuance of the sale certificate issued in favour of the 4th defendant, the property was delivered on him on 21-3-2004 through Court. Since then the fourth defendant has been in actual possession and enjoyment of the property of 438 sq. yards and building therein and his name was mutated in the Municipal records as a owner in occupation of the said property. The 4th defendant has been paying property tax for the said 438 sq. yards site and building therein.

i.The suits filed against the 3rd defendant and the 2nd plaintiff were decreed after full fledged trial and that, during the execution proceedings, the 2nd plaintiff deposited the decretal amount into Court. As regards the decree obtained against the third defendant, execution proceedings were taken, where in the property of 85 sq. yards was purchased in the Court auction. The 4th defendant is in actual possession and enjoyment of 438 sq. yards of site and building therein. The plaintiffs failed to join the persons who are alleged to have obtained the settlement deed from Lakshmi Kantham. Thus the suit is bad for non-joinder of necessary and proper party to the suit. The alleged settlement deed dated 29-9-2006 said to have been executed by the 2nd plaintiff in favour of the 1st plaintiff is null and void and not binding on the defendants. The suit for declaration is hopelessly barred by time in view of the facts that the Court auction the property in 1998 and 2001 that the Court sale were confirmed 10

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU that sale certificates were issued and the auction purchasers were put in possession of the properties purchased by them in the Court auction.

There is no cause of action for the suit and the cause of action alleged in the plaint is baseless and incorrect.

7)The 5th defendant filed written statement. The defendants 6 and 7 filed memo adopting the written statement filed by 5th defendant. The 5th defendant specifically denying the material allegations of the plaint and further contending that 2nd plaintiff is the wife of Katreddy Ganganna of Akiveedu and through him, the 2nd plaintiff has got one daughter. The 1st plaintiff is the grandson (daughter’s son) of the 2nd plaintiff. After the death of Ganganna, the 2nd plaintiff started residing in a house in Kobbari Thota, Western Street, Eluru she never resided in the plaint schedule property at any time during the life time of Bhogarao along with him or after his death with his wife Lakshmi Mantam.

i.The extent of 85 sq. yards and the building therein in

T.S.No.719/D of Eastern Street, Eluru, was brought to sale in the execution proceedings by K.V.S. Murthy being minor represented by the second defendant as his guardian. In the Court auction held on 1-4-1998, the 2nd defendant participated in auction and he was declared as highest bidder, followed by sale confirmation on 10-6-1998. In pursuance of the sale certificate issued by the Court, the property was delivered on 20-10-1998 through Court. In pursuance of a decree in O.S.No.145/1996 an extent of 438 sq. yards the building therein T.S.No.722 and 728 of Eluru

Municipality was put to sale and the Additional Senior Civil Judge’s Court,

Eluru conducted auction on 17-9-2001 and the 4th defendant participated in the said auction and the Court knocked down the bid in favour of the 4th defendant being the highest bidder and the Court sale held on 11

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU 17-9-2001 was confirmed on 21-12-2001 and the Court issued sale certificate in favour of the 4th defendant for 438 sq. yards. Later in pursuance of the sale certificate issued in favour of the 4th defendant, the property was delivered to him on 21-3-2004 through Court. Since then the 4th defendant has been in actual possession and enjoyment of the property of 438 sq. yards and building therein and his name was mutated in the

Municipal records as owner in occupation of the said property. The 4th defendant has been paying property tax for the said 438 sq. yards site and building therein.

ii.The plaintiffs have got knowledge, notice and acquaintance about the suit filed by the creditors of Thota Bhogarao against the 3rd defendant and obtained decrees against the assets of the deceased

Thota Bhogarao in the hands of 3rd defendant. The 2nd plaintiff is not at all the legally wedded wife of Thota Bhogarao and after commencement of the Hindu Marriage Act, the alleged marriage of the 2nd defendant with

Thota Bhogarao, when his wife (3rd defendant) is alive is null and void. As per law, the J.Dr., the persons claiming under the J.Dr., or the persons interested in the property should make an application to set aside the sale within 60 days and the 2nd plaintiff is not entitled to plead ignorance about the Court sale particularly when her relation with the 3rd defendant is cordial till 2005. Further Court sales are prior to 2001. Therefore, the present suit for declaration is clearly barred by limitation.

iii.There is sufficient and effective representation of the estate of the deceased Bhoga Rao and his Class-I heirs and legal representatives (D-3/wife) are parties to the suits in O.S.No.5/1996 and O.S.No.145/1996 on the file of Senior Civil Judge’s Court, Eluru and that the 3rd defendant is 12

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU also party to E.P.25/1997 in O.S.No.5/1996 and E.P.330/2000 in

O.S.No.145/1996 as such the auction conducted in the said E.P.S., are

perfectly valid and that there was a proper and effective representation by the 3rd defendant. Therefore, the plaintiffs are not entitled to allege that the sales are not valid that they are nor parties to the said proceedings.

Thus they are not entitled to question the Court sales in the above two

E.P., even though the 2nd plaintiff is not a party to the afore said two execution proceedings. The suit for declaration is hopelessly barred by time in view of the facts that the Court auctioned the property in 1998 and 2001 that the Court sale were confirmed and sale certificates were issued and the auction purchasers were put in possession of the properties purchased by them in the Court auction. There is no cause of action for the suit and the cause of action alleged in the plaint is baseless and incorrect.

8) Basing on the pleadings the following issues were settled:

1.Whether late Batchu Bhoga Rao was the absolute owner for the plaint schedule property?

2.Whether the 2nd plaintiff is the 2nd wife of late Batchu Bhoga

Rao?

3.Whether late Batchu Bhoga Rao executed the registered Will

dated 10.06.1991 and bequeathed the plaint schedule property

in favour of 2nd plaintiff?

4.Whether the registered settlement deed dated 29.09.2006 executed by the 2nd plaintiff in favour of 1st plaintiff in respect of plaint schedule property is valid?

5.Whether the plaintiffs 1 and 2 are entitled to seek declaration and for possession of schedule property?

6.Whether the defendants 1 and 2 are having any title over the plaint schedule property?

7.To what relief?

13

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU

9)During the pendency of the suit the 1st defendant died and his LR 4th defendant was added. Additional written statement filed by D2 specifically denying the plaint allegations. Basing the Additional written statement additional issue is settled on 27-8-2012:

1.Whether the suit for the relief of declaration sought for by the plaintiff is barred by limitation.

And on 27-8-2012 the following additional issue is settled:

1.Whether the fourth defendant is the absolute owner of 438 sq. yards of site in T.S.Nos.722 and 728, which is part of plaint schedule property, in pursuance of the Court auction sale held in O.S.No.145/96? Later 2nd defendant died. Defendants 5 to 7 were added as LRs of 2nd defendant. Additional written statement of D5 filed. Adopted by D6, D7 and

additional issues were settled.

Additional issue dated 9-2-2023:

Whether the auction conducted in OS.145/1996 by Additional Senior Civil

Judge, Eluru on 17.09.2001 wherein 4th defendant is declared as highest

bidder for 438 Sq.yds., and thereby sale certificate issued is binding on the parties?

10)To substantiate the pleading, the 2nd plaintiff herself was examined as P.W.1, 1st plaintiff was examined as P.W.2, one of the attestors of registered

Will dated 10-6-1991 was examined as P.W.3, the scribe of the Will was examined (through Advocate-Commissioner) as P.W.4, P.Surya Prakash Rao, 3rd party to the proceedings was examined as P.W.5, P.W.6 is the document writer, who scribed

Ex.A-7, P.W.7 is one of the attestor of regd. Settlement deed dated 29-9-2006.

Exs.A-1 to A-7 were marked.

On the other hand, the 2nd defendant was examined as D.W.1, 4th defendant was examined as D.W.2, D.W.3 was examined to elicit that he is working under 2nd defendant, DW.4 was examined to elicit the fact 14

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU that he took the premises in the year 1999 and has been paying rent to 2nd defendant. Exs.B-1 to B-18 were marked.

11)Learned Counsel for Defendants 2 and 4 submitted written arguments and perused the same. Heard the learned Counsel for the plaintiffs as well as the learned Counsel Defendants.

12)All the witnesses filed their chief-affidavits in lieu of examination in chief. P.Ws.1 to 7 filed chief-affidavits in support of the plaintiffs’ case. D.Ws.1 to 4 filed chief-affidavits in support of the defence plea.

13)P.W.1 deposed in her cross-examination that Thota Bhoga Rao is not her blood relative, but, he was her tenant and she has no document to show that he was adopted by her. She admitted that she did not aver in the plaint or in the proof affidavit that Plaintiff No.1 is her tenant and that she adopted him and she is not blessed with children. Further admitted that no document is filed to show that she married late Batchu Bhoga Rao. She deposed that plaintiff No.1 is doing job, but, she does not know where he is working. She is residing in Western

Street, Kobbarathota of Eluru. Batchu Lakshmi Kantham is wife of deceased

Batchu Bhoga Rao. Late BatchuBhoga Rao died on 12.12.1994. She was present when Ex.A3 was executed. Neither herself nor D3 did affix their signature on

Ex.A3. Batchu Bhoga Rao died when he lived in plaint schedule property. Her name is not included in Municipal Records. She did not file any application to add her name in the records. She deposed that she filed original of Ex.A3 in a suit between herself and her sister/D3. Further she voluntarily deposed that the suit is not between 3rd defendant and PW1 but they jointly contested against another party and it was filed by D1 and D2 against PW2 and 3rd defendant. She does not know why the appeal is pending before the Hon’ble High Court. D3 and herself never partitioned the properties of late Batchu Bhoga Rao, but, they used 15

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU to share the rents received from the property. There is no other property in the name of late Batchu Bhoga Rao except plaint schedule property. Some suits are filed against late Batchu Bhoga Rao in connection with debts incurred by the deceased. She deposed that she does not know how many cases are filed for recovery of debts from late Batchu Bhoga Rao. The house wherein she presently residing is her own property and she purchased the house by selling agricultural land given to her by her parents. She has no documentary evidence to show that she cleared debts of late Batchu Bhoga Rao. She does not know whether D3 gave possession of entire property to D1 and D2. She does not know who is brother-in- law of D2. The entire property of late Batchu Bhoga Rao is an extent of 523 sq.yds. She does not know to whom the Southern side portion of the building was given. She does not know how much extent of the house site was recorded in the name of D4 in Municipal records. She never went to Municipal Office nor filed any application to find out from the Municipal record in whose name the sites are available in the T.S. Numbers. She does not know whether the Court auctioned 85 Sq.yds of site of late Batchu Bhoga Rao in OS.05/1996 on 01.04.1998. She does not know whether D2 participated in the Court auction and he stood as highest auction purchaser (bidder). She also does not know the said sale was confirmed on 10.06.1998 and the property was delivered to D2 on 20.10.1998.

She does not know from the said date of confirmation and delivery, D2 is in possession and enjoyment of the auctioned property and he has been paying tax to the Municipality. She further deposed that her marriage was performed with one Kattireddy Ganganna of Akiveedu village and he died long time back before her marriage with Batchu Bhoga Rao. PW1 does not know whether D4 purchased an extent of 438 Square Yards and structures therein in a Court auction and that the same was confirmed on 21.12.2001. She also does not know whether Court had issued sale certificate to D4 who was in possession and enjoyment of the 16

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D.D.27-04-2023 ELURU above said property by paying taxes to the Municipality. PW1 deposed that by executing a deed Ex.A7 she transferred the rights over the property in the name of 1st plaintiff in the year 2006.

14)PW2 deposed in his cross-examination that he studied up to

Intermediate. His father Satyanarayana is residing at Bhimavaram at present. In the School Certificate and registers his father’s name is noted as Thota

Satyanarayana. Since his birth he is residing with plaintiff No.2, but he does not know whether she used to reside at Akiveedu before his birth. There is no document is available to show that P2/PW1 adopted him. His date of birth is 25.06.1984. There is no document to show that P2/PW1 is wife of Batchu Bhoga

Rao. It is true in his educational and service record shows that his residence is in

Western Street, Kobbarathota of Eluru. His educational record does not show that he lived with Batchu Bhoga Rao and himself lived with him. D3 Batchu Lakshmi

Kantham is wife of Batchu Bhoga Rao and she is alive at present. Batchu Bhoga

Rao survived for about 10 years. Even after his birth he never signed in any school register or in any document as his guardian. His mother’s name is Thota

Venkata Lakshmi. His mother is not the daughter of Batchu Bhoga Rao, but, she is daughter of Kanakamba/PW1. 2nd defendant contended that he purchased the property in the Court auction. He did not enquire about the schedule properties in the Registrar Office. He does not know whether any notice issued by 2nd plaintiff to D3 demanding partition of the schedule properties in pursuance of Ex.A3. He deposed that he cannot produce any proof to show that PW1 resided in Eastern

Street along with D3, as she never resided in Eastern Street. He admitted that only in the year 2012, D4 is impleaded in the proceedings by stating that the name of D4 is mutated in the Municipal Records. They have not ascertained about the cases filed against Batchu Bhoga Rao after his death and he does not 17

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D.D.27-04-2023 ELURU know how many cases were decreed against him. They know that if the debts are not cleared the decree holders will bring the property for Court auction. He does not know whether those sale certificates are also registered in the Registrar

Office.

15)PW3 deposed in his cross-examination that he admitted that his affidavit does not show his acquaintance with Batchu Bhoga Rao. He is doing cultivation, but does not have any lands in Sanivarapupeta and he does not have any other properties in their locality. By the time they went to Registrar Office

Ex.A3 was already drafted. He went to Registrar Office between 12.30 to 01.00

PM. Nagendra also accompanied him. The registration took place after 02.00 PM.

He does not know whether the scribe of Ex.A3 verified any other documents

before drafting Ex.A3. He never signed as an attester in any other documents of

Batchu Bhoga Rao except Ex.A3. At the time of execution of Ex.A3 the age of

BatchuBhoga Rao was 60 years. He does not know the particulars of properties mentioned in Ex.A3. He never attended the marriage of 2nd plaintiff with Batchu

Bhoga Rao. P2/PW1 resided with Batchu Bhoga Rao in Eastern Street, thus, he know that they lived together as wife and husband. He deposed that Batchu

Bhoga Rao informed him that P2 was already married and she was blessed with one daughter through her deceased first husband. But, he does not know during which year husband of PW1 died. He denied the suggestion that PW1 is not wife of Batchu Bhoga Rao and she used to reside only in Western Street,

Kobbarathota of Eluru. He denied the suggestion that Ex.A3 Will was not prepared in their presence.

16) In fact the evidence of P.Ws.1 and 2 reveals they used to reside at

Western Street, Kobbarithota but not as deposed by P.W.3. As per the contents of chief affidavit of PW.4 it was mentioned that he could not remember number of 18

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D.D.27-04-2023 ELURU documents drafted by him. He didn’t remember whether he has drafted any document for Batchu Bhoga Rao. Ex.A3 was prepared on the instructions of

Batchu Bhoga Rao on 10.06.1991. Batchu Bhoga Rao approached him in the Sub-

Registrar Office, Eluru and gave his title deeds to him to prepare Ex.A3 Will.

Ex.A3 got typed in his office at Narasimha Rao Pet, Eluru. Batchu Bhoga Rao and the attestors on the Will signed before them. PW4 deposed in his cross- examination that he has no good acquaintance with Batchu Bhoga Rao. Prior to

Ex.A3 he has not drafted any document for Batchu Bhoga Rao, he has not taken identification proof of Batchu Bhoga Rao for drafting Ex.A3. He hasn’t personally typed original of Ex.A3. He cannot say the age of Batchu Bhoga Rao on the date of Ex.A3. He deposed that it is mentioned in Ex.A3 that the testator has no right to modify or cancel the Will, and he doesn’t know the residence of Batchu Bhoga

Rao; and that he was under impression that he has not read over the Will after it was typed, therefore he couldn’t notice that there is typographical mistake in the

Will. He further deposed that he didn’t remember the names of the attestors and the time when Batchu Bhoga Rao approached to him for preparation of Will. He has not seen the original of Ex.A3 till date after its preparation on 10.06.1991. He denied the suggestion that by impersonation of Batchu Bhoga Rao Ex.A-3 was prepared and that B.Bhoga Rao never executed the Will dated 10.06.1991, and he never signed before him. He deposed that by 10.06.1991 there is no practice of insisting production of identity proof for registration of any document.

17)PW5 deposed in his cross-examination that 2nd plaintiff, Batchu

Bhoga Rao is resident of Kobbarathota, Eluru, but he does not know since how long he was there. He also residing within the same vicinity. He does not have much acquaintance with late Batchu Bhoga Rao and does not know when he died.

He was not present when late Batchu Bhoga Rao executed a Will. Late Batchu 19

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D.D.27-04-2023 ELURU

Bhoga Rao never showed him the Will nor asked him to sign as a witness in the said Will. Plaintiff No.2 showed him the Will (Ex.A3), but, he does not know how many pages it contains. He was present when Ex.A7 was drafted at the Registrar

Office. He was asked to come to Registrar Office by plaintiff No.2. He did not enquire about the property mentioned in the document except affixing his signature in the said Ex.A7 without knowing the contents of the said Will. He know plaintiff No.1, but, he could not remember whether he was present or not at that time. He has not seen any link document except Will pertaining to the property.

18)The contents of the chief affidavit of PW6 that, he is the scribe of settlement deed pertaining to a building situated in Eastern Street of Eluru.

Batchu Kanakamba executed a settlement deed in favour of her grandson Thota

Bhoga Rao. The settlement deed was drafted at the Registrar Office of Eluru. At that time the witness whose signatures are appearing in Ex.A7 were also present.

The contents of Ex.A7 are prepared at the dictation and the instructions of executant by name Batchu Kanakamba.

19)P.W.7 is the son-law of 2nd plaintiff and father of 1st plaintiff.

According to him, the 1st husband of 2nd plaintiff is Katreddy Musalaiah and no issues born to 2nd plaintiff through her 1st husband except his wife. He deposed that he is one of the attestor of Ex.A-3. Further he contradicted his own version that he do not know about the Will executed by his father-in-law, who is husband of 2nd plaintiff. He has no knowledge about the original will executed by Batchu

Bhoga Rao. PW7 deposed in his cross-examination that, he does not know about the Will executed by his father-in-law, husband of 2nd plaintiff. He has no knowledge about the original Will executed by Batchu Bhoga Rao.

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D.D.27-04-2023 ELURU

20)DW1 deposed in his cross-examination that, he filed suit for recovery of amount against the legal heirs of Bhoga Rao, he has shown his wife Lakshmi

Kanthamma as one of the defendant. Batchu Kanakambha was not shown as one of the defendants in the said suit. During the life time of Bhogarao, he had cordial terms with Bhoga Rao. He filed delivery certificate before the Court. He participated in the auction of approximately 85 sq. yards. Batchu Kanakamba name is not referred in Ex.B2. He has acquaintance with 4th defendant for the past years. D4 is his relative as he is residing at Odisa. Originally the total extent of 520 sq. yards of site and structure thereon belonged to Bhogarao.

21)DW2 deposed in his cross-examination that, D1 is his sister’s father- in-law. He has acquaintance with Bhoga Rao since 1980. The said Bhogarao has acquaintance in motor field and used to reside near the house of D1 as such he got acquaintance with him. Further deposed that he did Tobacco business. He used to go to Orissa to attend agriculture works and he used to come after completion. His family has Ac.18-00 of land in Orissa. He filed decree copy of the said suit in this case. He does not know whether Bhoga Rao has executed a registered Will on 10.06.1991. He does not know whether in the said Will Bhoga

Rao bequesthed the plaint schedule property out of the total building to the 2nd plaintiff herein. He handed over the documents to the counsel showing that he participated in auction and was declared as successful bidder.

22)DW3 deposed in his cross-examination that, he used to collect rents on behalf of D1 and also looking after his accounts and agriculture properties. He is working as accountant in the jewellary shop of D2. There is no documentary proof to show that he used to collect rents for D1. He used to hand over the rents to D4 and in his absence to D2. He has no knowledge about purchasing of property in the Court auction. The tenants names mentioned in his chief affidavit 21

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D.D.27-04-2023 ELURU except Yarramsetti Madhava Rao has occupied the respective portions recently.

He further deposed that there is no demarcation of building in 85 sq. yards also and 438 sq. yards also. He has facial acquaintance with Batchu Lakshmi

Kanthamma. He saw her in 1998 in the building. In October 1998 approximately the Court Amina has delivered 85 sq. yards on that Batchu Lakshmi Kanthamma shifted her delivered residence to 438 sq. yards building. Till then Lakshmi

Kanthamma was in possession.

23)DW4 deposed in his cross-examination that, D2 is his Landlord. He is in possession of telephone bills to show that since 1999 he is tenant of D2 to show the door number, street name, location. He was not present at the time of auction. Through friends, he came to know that D2 participated in the auction.

He knows D4. He has no personal knowledge that D4 also participated in Court auction. He is not auditor of D2. He admitted that he is close friend of D2.

24)According to the plaintiff Batchu Bhogarao is the husband of 2nd plaintiff who is the owner of two stairs building. Batchu Bhogarao had two wives. As there are no issues through 1st wife i.e., Lakshmikantam, he again married 2nd plaintiff.

25)The evidence of P.W.1 that Thota Bhoga Rao, who is the 1st plaintiff is not her blood relative but is her tenant and that there is no documentary proof that he was adopted by her. She deposed that she was not blessed with children and that no document is filed to show that she married late Batchu Bhogarao.

According to P.W.1, she is residing in the Western Street, Kobbarithota of Eluru.

She was present when Ex.A-3 was executed. On going through the contents of

Ex.A-3 which is a certified copy of regd. Will dated 10-6-1991, the contents reads as follows:

The testator by name Batchu Bhogarao, S/o.Krishnamma having two 22

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D.D.27-04-2023 ELURU wives by name 1st wife Lakshmikantam, 2nd wife Kanakamba, but no issues through him. All of them are residing jointly. The properties purchased on 19-4-1983 covered under T.S.No.728, 722 to an extent of 438 sq. yards and T.S.No.719/D to an extent of 85 sq. yards with house are bequeathed to his wives after his death.

The said Batchu Bhogarao died on 12-12-1994. Except the said property the testator has no other properties. The defence denied the execution of the Will.

Obviously whenever a party introduces a Will certainly the burden of proof lies on the propounder to dispel any suspicious circumstances. The party who introduces or rely on Will should prove,

1)The Will was signed by the testator;

2)The testator at the time was sound and disposing state of mind;

3)The testator understand the nature and effect of the disposition;

4)The testator had put his/her signature on free will

It is obligatory for the propounder to remove all the legitimate suspicion

before the Will is accepted as a valid last Will of the testator. As per Section 63

of Indian Succession Act, it requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will.

The Will is to be considered as proved when the party who introduces or rely on Will should prove, the Will was signed by the testator at the relevant time, was in a sound, disposing state of mind. The testator could able to understand the nature and effect of the disposition and put his/her signature; The testator has put his signature on his free will and the Will was attested by at least two attestors in his presence. Therefore, the propounder of the Will, do succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in sound and disposing state of mind; (iii) the testator understood the nature and effect of the 23

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D.D.27-04-2023 ELURU dispositions; and (iv) that the testator had put his signature on the document of his own free will. It is obligatory for the propounder to remove all the legitimate suspicious circumstances before a Will is accepted as a valid last Will of the testator.

26)Here in this case on hand, the attestor and scribe have no prior acquaintance. Their evidence does not inspire much confidence as they categorically deposed that at the instance of propounder, they are deposing evidence. Moreover, P.W.3 do not have knowledge of where the testator used to reside only to say that the deceased and P.W.1 used to reside as wife and husband. He deposed that P.W.1 used to reside along with 3rd defendant and the testator at Eastern Street, Eluru which is not true and correct. Even their evidence clearly reveals that they have no acquaintance with the deceased. At that juncture there will be no possibility for the deceased to share his thoughts or his intention. Hence, their evidence in proof of Will cannot be given any weight

27) The evidence of P.Ws.3 and 4 is of no use in proof of the Will as they have not identified the testator’s writings/signatures or the intention of the testator except following the propounder which cannot be deemed as proved.

Their evidence does not inspire any confidence in proof of Will. How he got acquaintance with the deceased was not properly let in through his evidence.

According to P.W.1, she is residing at Kobbarithota, Eluru. Even admission of

P.W.2 as the educational and service record of P.W.2, who is the grandson of

P.W.1 shows that their residence is in western street, Kobbarithota of Eluru and educational record does not show that he lived with Batchu Bhoga Rao though he survived for about 10 years even after his birth. When there is no record showing the 2nd plaintiff as wife of the deceased, the question of recognizing her as L.Rs., of the deceased is not possible. Further the contention of 2nd plaintiff that there is cordial relation with the 1st wife of the deceased then why she did 24

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D.D.27-04-2023 ELURU not examine the 3rd defendant i.e., the 1st wife of the deceased B.Bhoga Rao.

The plea of the plaintiff that till 2005 the 3rd defendant used to give her share in the property later she disappeared. What is the evidence placed before the

Court in proof of the said fact. The plea raised by the plaintiffs clearly focus to the fact that the plaintiffs intend to suppress the truth. Even her evidence that 1st plaintiff is not her blood relative but is her tenant clearly throws a doubt on the conduct and veracity of the witness. At first instance she deposed that the original Will was filed in suit between her and 3rd defendant, later she deposed that they jointly (i.e., 2nd plaintiff and D-3) contested against the another party and the said suit was filed by defendants 1 and 2 against P.W.2 and 3rd defendant. So the plaintiffs and 3rd defendant jointly contested the matter and filed the original Will. The necessity of filing the Will arises when there is a claim or dispute with regard to their right on the property or the inheritance.

Except the said fact the plaintiffs did not even plead the fact for filing the secondary evidence only at the stage of deposing evidence it was revealed. If really when both plaintiffs and 3rd defendant jointly contested against 3rd parties with regard to property where ‘Will’ was filed in proof of the same how the plaintiffs pleaded that till 2005, 3rd defendant used to share with them the properties and in the month of September, 2005, she disappeared from the building and the defendants came into possession of the entire building. When the sale was conducted on 1-4-1998 and is confirmed on 10-6-1998 and the property was delivered to 2nd defendant on 20-10-1998 with regard to 85 sq.

yards of property. So, also with regard to 438 sq. yards sale was confirmed on 21-12-2001, how the plaintiffs’ used to receive the share in the property till 2005.

As far as proof of Will is concerned, the evidence does not appear to be trustworthy. To consider the truth and veracity of the witness, the evidence of

P.Ws.1 and 2 does not inspire any confidence as P.W.1 not even deposing the 25

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D.D.27-04-2023 ELURU truth with regard to admitted facts. When the 1st marriage of P.W.1 is in existence, how she can marry the deceased.

28)The learned Counsel for the defendants contended that the whole cause of action is based on the sale, auction and delivery of the property the plaintiffs mischievously suppressed the fact as if 3rd defendant handed over the property to the other defendants on receipt of consideration and as she is also having a share as legatee under the Will her right is to safeguard but she intentionally suppressed the real fact and filed this suit, hence, suit is barred by limitation.

Art.58 of Limitation Act, 1963 envisages that the suit for declaration of title shall be filed within 3 years of right to sue accrues;

Art.59 reads -- To cancel or set aside an instrument or decree or for the rescission of a contract when the facts entitling the plaintiffs to have the instrument or the contract rescinded first become known to him.

The learned Counsel for defendants relied upon the following decisions:

1. R.Rajamma Vs. Avula Saraswathamma and others, AIR 1973

AP 132;

2. Kalepu Pala Subrahmanyam Vs. Tiguti Venkata Peddiraju and others, AIR 1971 AP 313;

3. Yeturu Dasaratharami Reddy Vs. Yeturu Pujamma and others,

AIR 1979 AP 111;

4. Bhabani Dasya Vs. Tulsi Ram Keot, AIR 1990 Gauhati 90;

5. Sagar Mahila Vidyalaya, Sagar Vs. Pandit Sadashiv Rao Harshe and others, AIR 1991 Supreme Court 1825;

6. M/s. Jindal Industries Ltd. Vs. State of Haryana, AIR 1991

Supreme Court 1832;

7. Kopparapu Venkata Subbaiah Vs. Gaddam Brahmam Reddy and others, 1997(4) ALT 66;

8. Katakam Viswanatham Vs. Katakam China Srirama Murthy and others, 2004(3) ALT 791;

9. A.P. State Civil Supplies Corporation Ltd., Cuddapah Vs.

26

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D.D.27-04-2023 ELURU

Simhadripuram Co-op. Marketing Society, Cuddapah and others, 2004(4) ALT 587;

10. Y.Prasad Rao (died) per L.R. and others Vs. PVenkat Raju, 2007 (3) ALT 403.

29)If really, Plaintiff had grievance against the defendants certainly she ought to have given notice even to 3rd defendant. No steps taken for cancellation.

This shows the collusion of the party only to defraud the rightful creditors the cause of action is shown. The cause of action alleged does not appear tenable as the plaintiffs alleged that 3rd defendant disappeared since one year i.e., one year prior to 6-10-2006 by handing over possession of plaint schedule property to defendant, which is not true and correct and which is not supported by tangible evidence as the evidence reveals property was delivered to 2nd defendant on 20-10-1998 and another property i.e., 438 sq. yards. When can a sale be set aside within 30 days from the date of sale of immovable property. Sale was confirmed on 21-12-2001. The same can be set aside on the ground of some material irregularity or mistake or fraud, in publishing or conducting it.

The Hon’ble Supreme Court observed that a sale pursuant to the public auction cannot be set aside unless there is concrete material that there was any fraud or collusion.

30)Where it is found on the basis of material on record that the property had been sold away at a throw away price and or on a wholly inadequate consideration because of fraud and or collusion or after any material irregularity.

The limitation to challenge the sale deed is 3 years from the date of execution.

31) ISSUE No.1:

As far as Issue No.1 is concerned, there is no rival plea or allegation from other side as they too admitted that the plaint schedule property is the 27

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D.D.27-04-2023 ELURU absolute property of the deceased Batchu Bhoga Rao. Hence, this issue is settled accordingly.

32) ISSUE No. 2:

There is no iota of evidence adduced to show that P.W.1 is the wife of B.Bhoga Rao.

ISSUE NO.3:

Except the certified copy of Will and the oral evidence of P.W.1, there is no evidence in proof of the plea that 2nd plaintiff is the 2nd wife of Batchu

Bhoga Rao. According to the evidence of P.Ws.1, 2 and 7, the evidence does not appear to be true, consistent and trustworthy but throws a doubt on the genuinity of the plaintiffs’ case. She denied the relationship between herself and 1st plaintiff, who is her grandson. According to P.W.1, she is residing in Western

Street in Kobbarathota, whereas the 1st wife of the deceased and the deceased used to reside in the plaint schedule property. The evidence of plaintiff does not inspire confidence to accept her plea as true and genuine.

33)Further the plaint pleading is silent with regard to the litigations filed against B.Bhoga Rao. The plaintiff tactfully suppressed the said facts and pleaded as if the 3rd defendant i.e., the 1st wife of B.Bhoga Rao on receipt of consideration left the property to the defendants. Her contention that till 2005 they used to share does not substantiate with any proof. Further the evidence let in by the plaintiffs that litigation was filed by 3rd parties against plaintiffs and D-3 wherein they both contested and original ‘Will’ was filed. To prove the said fact there is no evidence placed before the Court. If really the original Will is filed in any suit certainly the litigation relates to the schedule property. Moreover, the evidence shows that except the plaint schedule property the deceased B.Bhoga Rao has no other properties. But the facts and the evidence placed before the Court shows 28

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D.D.27-04-2023 ELURU that the property was purchased by the auction purchaser as Bhoga Rao was having liability to pay and the properties which Bhoga Rao possessed during his life time were auctioned. To that effect P.W.! deposed that she has discharged the liability of B.Bhoga Rao. It is not her pleadings or evidence showing the proof of the same but when the defendants put up evidence showing that the property was delivered after conducting sale as per procedure then the plaintiffs deposed that she has discharged the liability of the deceased B.Bhoga Rao. So, it can be inferred that she has knowledge of the liability of the deceased B.Bhoga Rao, now she want to claim the property by misleading the Court by pleading otherwise as if 3rd defendant colluded with other defendants and handed over the property. As far as the proof whether the 2nd plaintiff is wife of Batchu Bhoga Rao, the plaintiff has not placed any evidence in proof of the same. Further execution of Will is concerned. If the Will is to be considered as proved certainly when the property is exclusive property of B.Bhoga Rao, he is having every right to bequeath the property to any person to his will and wish, from all surrounding suspicious circumstances, the Court feels that the ‘Will’ is not proved to be free from suspicious. Hence, Issues 2 and 3 are settled against the plaintiffs.

ISSUE No.4:

As the Issues 2 and 3 were settled against the plaintiff, no right is being accrued to 2nd plaintiff who in turn can execute a settlement deed. Hence, this Issue is settled accordingly.

ISSUE No.5:

As Issues 1 to 4 settled against the plaintiffs, this Issue is settled against the plaintiffs.

29

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D.D.27-04-2023 ELURU

ISSUE No.6:

As the defendants’ right, title, possession is declared as valid as per law, this Issue is settled accordingly.

ADDITIONAL ISSUES

For better appreciation and convenience all the Additional Issues were settled at one stretch.

As per Section 101 Indian Evidence Act, ‘The burden of proof to establish a title in the present case lies upon the plaintiff’. Section 101 of Indian

Evidence Act envisages that whoever desires any Court to give judgment as to any legal right or liability dependants on the existence of facts which he asserts, must prove that those facts exist when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This is mandated in terms of Section 101 of the Evidence Act, which states that burden of proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions, but in the factual background of the present case, the general principle is applicable. In terms of Section 102 of the Evidence Act, if both parties fail to adduce evidence, the suit must fail. Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title. The weakness of the defence cannot be a justification to decree the suit.

The plaintiffs’ case based on surmises and Court cannot grant a relief of such nature when the plaintiffs could not establish their case. The burden of proof lies on the plaintiffs to prove their claim. The plaintiffs cannot withstand on the weakness of the defendants case. The plaintiffs could not able to establish their case showing that the suit is in time and that they are entitled for the relief sought for. Hence, the Additional Issues are settled accordingly.

30

O.S.No.08 of 2007I ADJ COURT

D.D.27-04-2023 ELURU

34) ISSUE NO.7:

In the result, the suit is dismissed with costs.

Typed to my dictation by the Stenographer Gr-I directly on computer device, corrected and pronounced by me in open Court, on this the 27th day of April, 2023.

Sd/- P.Manga Kumari,

I Additional District Judge, Eluru

Appendix of Evidence

Witnesses Examined

For Plaintiffs: For Defendants:

P.W.1 B. Kanakamba. D.W.1 K.Srirama Krishna.

P.W.2 T. Boga Rao. D.W.2 M.V.V. Satyanarayana Murthy

P.W.3 V. Venkata Subba Rao. D.W.3 T. Srinivasa Rao.

P.W.4 M. Subba Rao. D.W.4 Y. Madhava Rao.

P.W.5 P. Surya Prakasa Rao.

P.W.6 S. Venkata Durga Prasad.

P.W.7 T. Satyanarayana.

Exhibits Marked

For Plaintiffs:

Ex.A-1 -- True extract of sale deed dated 19-4-1983.

Ex.A-2 -- True extract of registered sale deed dated 25-5-1983.

Ex.A-3 -- Certified copy of registered Will dated 10-9-1991.

Ex.A-4 -- Office copy of legal notice dated 6-10-2006.

Ex.A-5 -- Original acknowledgement from 1st defendant.

Ex.A-6 -- Return cover of 2nd defendant.

Ex.A-7 -- Original registered settlement deed dated 29-9-2006 executed by P.W.1 in favour of 1st plaintiff.

For Defendants:

Ex.B-1 -- Sale certificate issued in favour of K.S.V.Satyanarayana Murthy. Ex.B-2 -- Certified copy of the delivery warrant, schedule, delivery receipt and tom-tom receipt. Ex.B-3 -- Sale Certificate issued in favour of M.V.V.Satyanarayana Murthy. Ex.B-4 -- Electricity Bill with receipt in respect of service connection No.026838.

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D.D.27-04-2023 ELURU

Ex.B-5 -- Electricity Bill with receipt in respect of service connection No.044638. Ex.B-6 -- Electricity Bill with receipt in respect of service connection No.044640. Ex.B-7 -- Electricity Bill with receipt in respect of service connection No.007719. Ex.B-8 -- Property tax receipts (9 in number) issued in the name of K.V.S.Murthy. Ex.B-9 -- Property tax receipts (7 in number) issued in the name of M.V.V.S.Murthy for 2005 to 2009, 2011 and 2012. Ex.B-10 -- Certificate dated 20-1-2004.

Ex.B-11 -- Encumbrance Certificate dated 20-1-2004.

Ex.B-12 -- Acknowledgement given by APDC dated 30-10-2005 for connection No.044638. Ex.B-13 -- Acknowledgement given by APDC dated 30-10-2005 for connection No.044639. Ex.B-14 -- Acknowledgement given by APDC dated 30-10-2005 for connection No.044640. Ex.B-15 -- Electricity bills (5 in number) along with receipts with service connection No.26838. Ex.B-16 -- Electricity bills (3 in number) along with receipts with service connection No.44640. Ex.B-17 -- Electricity bills (2 in number) along with receipts with service connection No.44639. Ex.B-18 -- Electricity bill along with receipts with service connection No.44638.

Id/- P.M.K.,

I Additional District Judge,

Eluru.

IN THE COURT OF JUDGE, FAMILY COURT-CUM-VII ADDITIONAL DISTRICT

JUDGE :: WEST GODAVARI AT ELURU.

Present: Smt.P.Manga Kumari

Judge, Family Court – cum –VII Additional District Judge

West Godavari, Eluru Friday, this the 18th day of November, 2022.

ORIGINAL SUIT No.85/2012 (Old O.S.NO.423/2006)

Between: Jammisetti Hanumantha Rao S/o Veeraraghavayya, Hindu, Male, aged 50 yrs, Business, Bapulapadu mandal, Hanuman Junction, Krishna District. …Plaintiff

And

Jarugu Srinivasa Rao S/o Pothuraju, Hindu, Male, aged 35 yrs, R/o Appanaveedu, Gudivada Road, Hanuman Junction, Krishna District. … Defendant

This suit is coming on 19.10.2022 for final hearing before me for hearing in the presence of Sri M.Lakshman Kumar, learned advocate for the plaintiff and of Sri T.Jagan Mohan, learned advocate for the defendant upon perusing the material on record and upon hearing arguments on both sides, and the matter having stood over consideration till this day, this Court delivered the following:-

J U D G M E N T

This Suit is filed by the plaintiff against the defendant for grant of permanent injunction restraining defendant, their men and followers from ever interfering with the plaintiff’s peaceful possession and enjoyment of the item Nos 1 and 2 of the plaint schedule properties and for costs.

2. The case of plaintiff in brief as per plaint averments is as follows:

The plaintiff is a business person running a rice mill and cinema theater and also he is having immovable landed property including plaint schedule properties situated both in West Godavari and Krishna District. The defendant is a un-employee who has been doing tender business in Hanuman Junction and also

Gudivada road.

i). The plaintiff and one Venkateswara Rao are the adopted sons of

Veeraraghavayya and they were brought up by the Veeraraghavayya and his wife

Eswaramma from their childhood i.e from at their ages of 2 and 3 years old and the said Veeraghavayya and Eswaramma have performed their marriages. On 01.09.1976 late Veeraraghavayya in a sound and disposing state of mind executed a Will bequeathing all his properties to the plaintiff and his brother Venkateswara

Rao. In fact the said Will also acted upon by the parties, the said fact is more clear and evident from the earlier L.A.O.P.No.28/1976 proceedings went on the file of

Subordinate Judge, Gudivada. It is further averred that when some portion of the land item NO.2 of the plaint schedule property was acquired by the Government for extension of bus stand complex at Hanuman Junction in that connection an

L.A. proceedings were initiated by the Government. In that connection having aggrieved with the compensation amount fixed by the Government late

Veeraraghavayya filed an O.P.NO.28/1976 on the file of Subordinate Judge,

Gudivada pending disposal of the said O.P., the said Veeraraghavayya died and the said Will dated 01.09.1976 was also filed in the said O.P wherein the plaintiff and the defendant were impleaded as LRs.

ii). It is further averred that on 07.09.1973 Veeraraghavayya executed a registered settlement deed in favour of the plaintiff over the plaint schedule property and some other properties. On 25.09.1974 the Veeraraghavayya executed another registered settlement deed in favour of plaintiff’s brother

Venkateswara Rao settling some other property including the plaint schedule properties. On 14.12.2004 the plaintiff and his brother Venkateswara Rao got partitioned their entire properties. The half of the plaint schedule property an extent of Ac.4.30 cents of land covered by R.S.NOs.193/2, 193/3, 193/5, 72/8, 72/9 fell to the share of the plaintiff and remaining share fell to his brother

Venkateswara Rao. In the said partition deed, the lands in item Nos 3, 4, 6, 8 of A schedule totaling of an extent of Ac.4.30 cents is a wet land and that item NO.2 of the schedule property fell to the share of plaintiff, whereas item NO.7 of the land covered by B schedule and the item No.2 of the plaint schedule property mentioned in the said partition deed. In the said partition deed, in the schedule

A1, B, item NO.7 is total extent of Ac.0.09 cents in which the plaintiff and his brother Venkateswara Rao raised 6 shops which are being managed by the plaintiff, whereas in 6 other shops which are situated in some other land an extent of Ac.0.93 cents in R.S.NO.188/3 in which the plaintiff and his brother have raised 6 shops and they have been looking after and managed by the plaintiff’s brother.

The plaintiff has been looking after and collecting rents from 6 persons who have been conducting different business and the said 6 persons by name one

Mallikharjuna Rao (iron shop), 2) Baji (mutton shop), 3) Karimulla (mutton shop),

4) Nukala Venkata Swamy (pan shop), 5) Muppa Maheswara Rao (hotel and 6th shop owned by the Muppa Maheswara Rao who have been conducting pan shop.

The defendant without having any manner of right over the schedule properties in item NOs 1 and 2, the defendant and their men have been trying to interfere with the peaceful possession and enjoyment of the plaint schedule properties and they are trying to oust the plaintiffs possession high handedly from the plaint schedule properties. Since the defendant is having house which stood in the name of his mother which is on the back side of the said 6 shops which are situated in an extent of Ac.0.09 cents of site. The defendant made an attempt to remove the 6 shops and trying to occupy the said site. On that the plaintiff and his sons and all the 6 shop owners have stopped his highhanded acts. Later, the plaintiff placed the matter before elders and the elders admonished the defendant. On that the defendant and their men proclaimed that they would occupy the item No.2 of the schedule property even without having manner of right over the schedule properties. The defendant tried to place the some stone-chips and sand into the item No.1 of the schedule property. The defendant is highhanded person having muscular power, strong supporters of highhanded persons who are rowdy sheeters have been proclaiming in the village that they would at any cost oust possession of the plaintiff. The defendant without having any manner of right in the plaint schedule and that he has been trying to create some false and fictitious documents and trying to create new rights or create new way to the item Nos 1 and 2 of the plaint schedule properties. Hence, the suit.

3. Defendant filed written statement specifically denying the plaint allegations and further contending that the plaintiff and one Venkateswara Rao are the adopted sons of Jarugu Veeraraghavayya is not true and correct. It is not permissible under the Hindu Adoptions and Maintenance Act to adopt two sons simultaneously and it is legally impossible. The marriage invitation card purported to have been issued by Veeraraghavayya and Eswaramma shows the status of the plaintiff as foster son but not adopted son.

It is further averred that Veeraraghavayya who was actually Jarugu

Veeraraghavayya died intestate and he never executed any Will. The alleged will

dated 01.09.1976 alleged to have been executed by Veeraraghavayya is a rank

forgery and the plaintiff did not acquire any title or possession under said forged

Will. The defendant had no notice of the Land Acquisition Proceedings in (L.A.)

O.P.No.28/1976 and any observation that might have been made in these proceedings are not valid and they do not bind on the defendant. The Government of Andhra Pradesh acquired part of the site of late Veeraraghavayya for extension of the bus stand complex at Hanuman Junction which had resulted in the proceedings under the Land Acquisition Act in (L.A.) O.P.No.28/1976 is no doubt true. The plaintiff and another Chinta Venkateswara Rao who are no other than the sons of the paternal aunts of the defendant were conducting the Land

Acquisition Proceedings on behalf of all other legal heirs of Veeraraghavayya in a fiduciary capacity. But they took undue advantage of the same and forged and fabricated the alleged Will dated 01.09.1976 in violation of their fiduciary obligations. It might be true that Veeraraghavayya executed two registered settlement deeds in favour of the plaintiff on 07.09.1973 and 25.09.1974 in favour of the plaintiff and another Chinta Venkateswara Rao. The allegation partition deed is absolutely a void document and it is not at all binding on the defendant.

Thereafter, the defendant, his mother and his sister have filed O.S.No.34/2004

before I Additional District Judge, Eluru seeking a decree for partition of the plaint

schedule property.

It is further averred that late Jarugu Veeraghavayya @ Kammula

Veeraraghavayya’s wife was Eswaramma (daughter of Kammula Subbayya).

Eswaramma’s maternal grandmother and Jarugu Veerayya’s mother were sisters.

The said Kammula Subbayya who was a resident of Kaikaram appears to have died when his wife was pregnant with Eswaramma in about 1913. At that time

Jarugu Veerayya’s wife Mahalakshmi was pregnant with Veerayya, who appears to have been delivered in 1914. By the date of birth of Eswaramma, Kammula

Subbayya was not alive and he died without any male issue. As Kammula

Challayamma was the cousin of Jarugu Veerayya, at her request,

Veeraraghavayya appears to have been permitted to be fostered for a few years by Challayamma (mother of Eswaramma) at Kaikaram. Later, he joined his father

Jarugu Veerayya at Appanaveedu. Late Jarugu Veerayya and his two sons

Veeraraghavayya and Pothuraju constituted a joint Hindu Family and they all lived together in the dwelling house of the joint family at Appannaveedu i.e item No.1 of the plaint schedule property). The said Veeraraghavayya was fostered for some time by Kammulla Challayamma at Kaikaram and he was called as Kammula

Veeraghavayya. Eventhough Veeraraghavayya was fostered by Kamula

Subbayya’s wife Challayamma, on the enquiries made by the defendant’s family that there was no adoption at all and that no property of Kammula Subbayya devolved upon late Veeraraghavayya, even though he was possessed of some landed property at Kaikaram. It was for this reason only Veeraraghavayya naturally returned to his father at Appanaveedu. Under the old Hindu Law, it was only the father, in the absence of father, the brother who can give a son or brother in adoption. But in this case, as Kammula Subbayya died, his wife had no power to take Veeraraghavayya in adoption. Though the widow of a Hindu can adopt a son to her husband, if such authority is given by her husband or with the permission granted by Sapindas, there was no such permission accorded to

Challayamma. The ancestor of Jarugu Veerayya who originally belonged to

Kankipadu in Krishna District migrated Appanaveedu about one century ago. They acquired about Ac.0.06 cents of house site which is a Gramakantam site. They raised a thatched house for their dwelling. The family of Jarugu people was living in the said site from generation to generation for the last one century. If there was an adoption of Veeraraghavayya by Challayamma, her daughter Eswaramma would not have be given in marriage to Veeraraghavayya because they were brother and sister by virtue of such an adoption. During the life time of Jarugu

Veerayya as the ancestral dwelling house was not providing adequate accommodation the joint family constructed another house on the western side in which Veeraraghavayya was living with his wife. Veeraraghavayya shifted to

Bapulapadu and improved his financial position. Veeraraghavayya own his exertions acquired items 2 to 8 of the plaint schedule properties under various sale deeds (registration extracts of which are in O.S.No.34/2004) filed). Jarugu

Veeraraghavayya @ Kammula Veeraraghavayya was the absolute owner of all the plaint schedule properties. As a matter of fact, out of such properties he settled a part of the property on his nephews i.e Chinta Venkateswara Rao and Jammisetti

Hanumantha Rao. Veeraraghavayya had great affection towards his brother

Jarugu Pothuraju and his children. Actually, he performed the 2nd marriage of

Pothuraju in 1964 and was contemplating to bequeath all his remaining properties by executing a Will in favour of Pothuraju. Jarugu Veeraraghavayya died intestate on 27.09.1976 with paralysis. His wife Eswaramma inherited the plaint schedule properties on the death of Veeraraghavayya as his sole class-1 heir. Eswaramma died intestate on 17.05.1981. On her death, the plaint schedule properties devolved upon the heirs of her husband (late Jarugu Pothuraju and Bandi

Kanakamma who are respectively his brother and sister under Section 15(2) of the

Hindu Succession Act, 1956 and they are his class-1 heirs. On the date of death of

Veeraraghavayya and his wife Eswaramma, his younger brother Pothuraju and younger sister Bandi Kanakamma only were alive. The remaining four sisters of

Veeraraghavayya passed away. The plaint schedule properties devolved upon

Jarugu Pothuraju and Bandi Kanakamma equally. On the death of Pothuraju, his ½ share developed upon his children by his two wives who were alive by the date of his death in 1981. The plaintiffs and the defendants are the only heirs legally entitled to share the plaint schedule properties. They being co-heirs are tenants in common and they are in joint possession of the plaint schedule properties.

Actually Chintally Venkateswara Rao being the brother in law of this defendant has been managing the plaint schedule properties and distributing the income among all the heirs of late Veeraraghavayya and Eswaramma. But the defendant’s sister and brother in law developed evil idea of grabbing the entire plaint schedule properties. The plaintiff himself filed an application in O.S.No.34/2004 to be added as a party in it and it is pending. The plaintiff successfully managed to obtain an exparte temporary injunction order by suppressing material facts in the case. The property not covered by the settlement deeds executed by Veeraraghavayya is not in the possession of anybody and it is liable to be partitioned among the number of persons mentioned in the said suit O.S.No.34/2004. It has to be mentioned that the Sy.No. of Item NO.1 is 76 and not 193. By filing a false suit by forging the

Wills and by obtaining an exparte injunction order. The plaintiff is unjustly enjoying the income without any ownership, title or possession only with the help of temporary injunction order. The plaintiff is not entitled to a decree permanent injunction or for any other relief. The suit is bad for non-joinder of necessary parties. The above suit is not maintainable and it is liable to be dismissed with costs.

4. Basing on the above pleadings, the following issues are settled for trial:

1.Whether the plaintiff is entitled for permanent injunction and

1.

their men from ever interfering with the plaintiff’s peaceful

possession and enjoyment of the plaint schedule property?

2.To that relief? 2.

5. To substantiate the case of the plaintiff, the plaintiff himself was examined as PW1 and Vadla Venkata Swami, Shaik Karimulla, Kandada Venkata

Ramakrishna who are third parties were examined as PWs2 to PW4 and got marked Ex.A1. On behalf of the defendant, the defendant himself was examined as DW1, no documents were marked.

6. Heard arguments on both sides. Perused the material on record.

ISSUE No.1:

7. To decide the fact in issue it is fit and proper to go through the oral and documentary evidence let in by both the parties. PWs 1 to 4 filed their chief affidavit in support of plaintiff’s plea. Though, the chief affidavit of PW2 was filed.

His evidence was eschewed as he did not turnup for cross examination. DW1 filed his chief affidavits in support of the defence plea.

PW1 in his cross examination deposed that this suit is filed by him for an extent of Ac.0.09 cents in R.S.No.76 at Appannaveedu panchayat against the defendant for injunction order. He run the rice mill from 1974 to 1985 or 1986 in joint with one Chinta Venkateswara Rao. He did not file any registered partition deed between himself and Chinta Venkateswara Rao. He do not know whether the defendant ran business in cars and also other business. To his knowledge the surname of Veeraraghavayya was Kammula but not Jarugu. The surname of biological father of Veera Raghavayya was Jarugu. The said Veerayya has two sons namely Veera Raghavayya and Pothuraju. He admitted that himself and

Chinta Venkateswara Rao never brought the above said land acquisition proceedings to the knowledge of the defendant. He admitted that he was aware of the suit proceedings in O.S.No.34/2004 on the file of this court filed by the defendant, his mother and sister seeking partition of partition of properties wherein the wife of Chinta Venkateswara Rao namely Chinta Seetha Mahalakshmi is the 11th defendant. Eswaramma is the wife of Veera Raghavayya. He do not know whether the maternal grandmother of Eswaramma and the mother of

Veerayya are sisters. He do not know whether Kammula Subayya died in or about 1913. He do not know whether Kammula Subbayya was not alive by the date of birth of Eswaramma. He do not know whether the said Kammula Subbayya had no male issues. He do not know whether Kammula Chellayamma is cousin of Jarugu

Veerayya. He do not know whether Kammula Challayamma brought up Veera

Raghavayya as fostered son at Kaikaram for a short period. He admitted that all the properties belongs to Veeraraghavayya is his self acquired properties which are shown in O.S.No.34/2004 pending on the file of this court. He admitted that

Veeraraghavayya settled two properties one each to him and Chinta Venkateswara

Rao by virtue of two respective settlement deeds. He further admitted that as on the date of death of Veeraraghavayya and his wife Eswaramma, his brother

Pothuraju and his younger Bandi Kanakamma were alive. The other four sisters of

Veera Raghavayya predeceased him. He admitted that Eswaramma died on 17.05.1981. Eswaramma had executed a Will bequeathing her properties to Chinta

Venkateswara Rao. He admitted that he never mentioned in any of his pleadings in the suits that about the execution of Will by Eswaramma in favour of Chinta

Venkateswara Rao. He admitted that he filed a petition to implead him as party in the suit in O.S.No.34/2004 but the same is dismissed. He admitted that he has not filed any bills regarding the construction of shops in item No.1 of the plaint schedule property. He admitted that the survey number of item No.1 is 76 but not 193 as shown in plaint and further deposed that it might have crept in by oversight. He admitted that the codicil dated 15.09.1976 is brought into existence by Chinta Venta Venkateswara Rao to gain wrongfully and the same is not valid.

One Shaik Karimulla who is third party to the suit was examined as PW3. In his cross examination he deposed that he do not know the extent or the measurements of the shop. He has not seen or perused the documents relating to the properties of the plaintiff. Since 1995 he was one of the tenants under the plaintiff. He was inducted as a tenant on monthly rent of Rs.200/- per month. At the present the rent for the shop is Rs.4,600/- per month. He admitted that he has not filed any proof or record showing the rent deed or rent receipts existing between them; he has not filed any proof of record showing that he has doing butcher work in the said premises. He do not know what property referred as item

No.2 in his chief affidavit. He has not perused any document to say that towards eastern side of the shops the mother of the defendant is having house property.

One Kandada Venkata Ramakrishna who is third party to the suit was examined as PW4. In his cross examination he deposed that his father used to work as a clerk in the mill of Kammula Veera Raghavayya he has seen him. He came to know the details through his father that the plaintiff and Chinta

Venkateswara Rao are the nephew of Veeraraghavayya and they were treated as fostered/adopted sons of Veeraraghavayya. He has not filed any proof or record showing that the plaintiff and Chinta Venkateswara Rao was treated as fostered/adopted sons of late Veeraraghavayya.

8. In his cross examination DW1 admitted that item No.1 it is an extent of

Ac.9.00 cents consists of 6 shops. He deposed that it is movable shops (pan shop) but not affixed to the land. His mother’s house is towards eastern side of item

No.1. He admitted that the plaint schedule property is the self acquired property of K.Veeraraghavayya. He deposed his evidence in O.s.No.9/2017. He admitted that their family and Veeraraghavayya family living in separate houses; he has not filed any documentary proof showing that his father and his elder brother

Veeraghavayya used to live jointly along with their families at Appanaveedu. He admitted that Veeraraghavayya died at his own house at Hanumanjunction; plaintiff and Venkateswararao used to reside in the house of Veeraraghavayya.

Veeraraghavayya fostered plaintiff and Venkateswara Rao. He admitted that

Veeraraghavayya performed their marriages and also seen their education etc. He deposed that his father also performed their marriages along with

Veeraraghvayya. He admitted that he has not mentioned either in his pleadings or in his chief affidavit that his father along with Veeraraghavayya fostered plaintiff and Venkateswara Rao and performed their marriages. He admitted that the subject matter of the suit is also subject matter of O.S.No.34/2004. The plaintiff was not shown as party in O.S.No.34/2004. The plaintiff is claiming share in the properties by virtue of Will dated 01.09.1976. On 29.09.1976 Veeraraghavayya died. He denied the suggestion that on 01.09.1976 Veeraraghavayya bequeathed

Will in favour of plaintiff, Venkateswara Rao and Srinivasa Rao in respect of item

NO.1 of the plaint schedule property and with regard to item No.2 in favour of

Venkateswara Rao and plaintiff and that it is the last Will of the testator. He admitted that he has not filed any proof showing that his father and his paternal aunt succeeded the properties of Veeraraghavayya after his death and that they had been in possession and enjoyment till their death. He admitted that he has not filed documentary proof showing that subsequent death of his father and paternal aunt they enjoyed the properties of Veeraghavayya. He admitted that the plaint schedule property is not in his possession and enjoyment. He was fully aware of their family matters as well as Veeraraghavayya’s family matter. He admitted that some part of the land belongs to Veeraraghavayya was acquired by the Government for purpose of RTC bus stand. Land acquisition proceedings were also conducted. Veeraraghavayya predeceased his wife. Land acquisition proceedings were done even during his life time and also subsequent thereto. He admitted that subsequent to the death of Veeraraghavayya conducted the land acquisition proceedings. He do not know whether the wife of Veeraghavayya has exhibited the Will dated 01.09.1976 in the land acquisition proceedings thereby impleaded as party to the proceedings. Eswaramma died in the year 1983. They have not challenge or impleaded as a party. He do not know whether his father got Ac.1.00 cents of land in survey No.102/2 of Tallamudi which his father succeeded from his 1st wife. He do not know whether his father sold Ac.1.00 of land in S.R.No.102/2 of Tallamudi village to Eswaramma i.e wife of the

Veeraraghavayya in view of discharge of debt due to Eswaramma by his father.

He admitted that 6 persons i.e Mallikarjunarao (ironshop), Baji (mutton shop),

Karimullah (mutton shop), Nukala Venkataswamy (pan shop), Puspa Maheswara

Rao (hotel) are running the shops in item No.1 of the plaint schedule property on rental basis. He admitted that his mother’s house is the backyard of the shops; the main road is towards western side of the shops.

9. The relief which the plaintiff sought for is relief of permanent injunction restraining the defendant, his men and followers from ever interfering with the plaintiff’s peaceful possession and enjoyment of item Nos 1 and 2 of the plaint schedule property.

The evidence adduced by the plaintiff’s clearly reveals that he is not having exclusive title over the property as half of the share he is having right covered under registered settlement deed executed in favour of plaintiff and one Chinta

Venkateswara Rao who is not a party to the proceedings. Further, the evidence clearly reveals that the identity of property ie. item No’s is not correctly mentioned.

The plaintiff though pleaded that Veeraraghavayya conveyed his properties to himself and his brother Chinta Venkateswara Rao. It is evident that several suits were filed by all the parties against one another. This plaintiff admitting the ‘Will’ said to have been executed by Veeraraghavayya in favour of himself and

Chinta Venkateswara Rao but denying the Codicil. So also the defendant along with others who alleged to be the legal heirs of Pothuraju claiming right under section 15(2) of Hindu Succession Act, 1956 as the said Veeraraghavayya and his wife died intestate hence the property revert back to the legal heirs on male side as there are no class-I legal heirs. When there is a serious contest between the parties the plaintiff cannot seek for an equitable remedy of permanent injunction as there is serious dispute of title and even the said Chinta Venkateswara Rao is a cousin but not own brother as referred and there is no specific identity of property to which the plaintiff is having exclusively title (even if considering the ‘Will’ as proved). In the light of the above discussion, this court feels that for a relief of granting of permanent injunction there must be equitable grounds to interfere when the title is in dispute and the party who approached the court has not placed all the true facts the court cannot pass an equitable relief. Hence, this issue settled against the plaintiff.

10. Issue NO.2:-

In the result:- the suit is dismissed without costs.

Typed to my dictation by Stenographer directly on computer, corrected and

pronounced by me in the open court, this the 18thday of November, 2022.

VII ADDL.DISTRICT & SESSIONS JUDGE,

ELURU, WEST GODAVARI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:- FOR DEFENDANT:-

PW.1: J.Hanumantha Rao DW.1:Jarugu Srinivasa Rao PW.2: V.Venkata Swamy PW.3: Shaik Karimulla PW.4:K.Venkata Ramakrishna

DOCUMENTS MARKED

FOR PLAINTIFF:-

Ex.A1 : Attested true copy of Will dated.01.09.1976 executed by Kammula Veeraraghavayya.

FOR DEFENDANT: Nil

VII ADDL.DISTRICT & SESSIONS JUDGE,

ELURU, WEST GODAVARI.

Plaint presented on: 25.06.2014

Plaint filed on : 25.06.2014

IN THE COURT OF JUDGE, FAMILY COURT-CUM-VII ADDITIONAL DISTRICT

JUDGE :: WEST GODAVARI AT ELURU.

Present: Smt.P.Manga Kumari,

Judge, Family Court – cum – VII Additional District Judge

West Godavari, Eluru

Wednesday, this the 15th day of December, 2021.

ORIGINAL SUIT No.86/2014

BETWEEN:

Kotharu Venkata Satyanarayana, S/o Narayana, Male, aged about 52 years, Cultivation, Resident of Door No.3-24, Singarajupalem, Nalljarala Mandal, West Godavri District. …Plaintiff

And

Nandina Sri Lakshmi, W/o Ramachandra Rao, Female aged about 55 years, Business Resident of Door No.2-21,Chityala, Gopalapuram Mandal, West Godavari District. … Defendant

This Suit is filed by the plaintiff against defendant to pass a decree in his favour for the suit amount of Rs.20,49,600/- with subsequent interest on the

Principle amount from the date of suit till realization and for costs.

Value of the suit:

The plaintiff values the suit for the purpose of Court fee and Jurisdiction is being Rs. 20,49,600/- on which a court fee of Rs.22,926/- is paid under section 20 r/w Schedule I, Article-1 (c) of APCF and SV Act of 1956.

CAUSE OF ACTION:

On 12.7.2011 when the defendant borrowed a sum of Rs.12,00,000/- from the plaintiff in cash for the purpose of her business and executed a demand promissory note on even date in favour of the plaintiff at Singarajupalem agreeing to repay the same with interest at 24% per annum to the plaintiff or his order and the plaintiff gave a notice though his counsel to the defendant on 17.6.2014 and where the defendant is residing at Chityala and the said village is within the jurisdiction of this Hon’ble Court.

This suit is coming on today for final disposal before me in the presence of

Sri M.P.Achari, learned advocate for the plaintiff and of

Sri S.Rama Chandra Rao, learned advocate for the defendant, this Court DOTH

ORDER AND DECREE as follows:-

(i) that the suit be and is hereby dismissed with costs;

(ii) that the plaintiff do also pay the defendant a sum of Rs.69,602/- towards costs of the suit besides bearing his own costs of Rs.85,628-00 /-

Given under my hand and the seal of the Court, this the 15th day of December, 2021.

VII ADDITIONAL DISTRICT JUDGE,

WEST GODAVARI, ELURU.

MEMORANDUM OF COSTS

FOR PLAINTIFF FOR DEFENDANT

Rs. Ps.

1. Stamp on Vakalat 2-00 Stamp on Vakalat 2-00

2. Stamps on Plaint 22,926-00 Petition stamp 200-00

3. Process 300-00 Process --

4. Pleader fees(Sr) 50,000-00 Pleader fees 63,200-00

5. Pleader Fees(Jr) 12,000-00 Expert Opinion 6,000-00 fees

6. Writing Charges. 200-00 Writing Charges. 100-00

7. Typing charges 200-00 Typing charges 100-00

Costs Taxed: Rs.85,628-00 Total costs Rs.69,602-00 Allowed.

VII ADJ.,

W.G. Eluru.

NOTE: The parties are hereby informed that the documents filed by them in this case, are liable to be destroyed after three years from the date of this judgment and decree. Therefore, they are informed to take back the documents which were filed by them within three years from the date of judgment and decree as per the proceedings without fail.

--------------------------------------------------------------------- IN THE COURT OF

JUDGE, FAMILY COURT-CUM-VII ADDITIONAL DISTRICT JUDGE :: WEST

GODAVARI AT ELURU.

Present: Smt.P.Manga Kumari

Judge, Family Court – cum –VII Additional District Judge

West Godavari, Eluru Monday, this the 12th day of September, 2022.

ORIGINAL SUIT No.208/2015

Between: Kambhampati Padmavathi W/o late Srirama Sridhara Rao, Hindu, Female, aged 47 yrs, Properties & business, R/o D.No.1-101, Tuvvachilakarayudupalem village, Lingapalem mandal.

…Plaintiff

And

Takkellapati Pulla Rao S/o Venkata Rao, Hindu, Male, aged 37 yrs, Business R/o D.No.1-65, Tuvvachilakarayudupalem village, Lingapalem mandal. … Defendant

This suit is coming on 29.08.2022 for final hearing before me for hearing in the presence of Sri V.Lakshmi Narayana, learned advocate for the plaintiff and of Sri Avula Jagan Mohan Rao, learned advocate for the defendant, upon perusing the material on record and upon hearing arguments on both sides, and the matter having stood over consideration till this day, this Court delivered the following:-

J U D G M E N T

This Suit is filed by the plaintiff against the defendant to pass a decree in her favour for the suit amount of Rs.15,46,200/- with subsequent interest at 12% per annum on the Principle amount of Rs.9,00,000/- from the date of suit till realization.

2. The case of plaintiff in brief as per plaint averments is as follows:

On 02.01.2013 the defendant borrowed an amount of Rs.9,00,000/- from the plaintiff for the purpose of his business, agricultural and family expenses agreeing to repay the same with interest at Rs.2/-per mother either to the plaintiff or her order on demand. The defendant executed demand promissory note in favour of the plaintiff on 02.01.2013. Inspite of repeated demands made by the plaintiff personally and through mediators but the defendant failed to discharge the debt. After repeated demands made by the plaintiff, the defendant issued a cheque bearing No.001102 for Rs.9,26,116/- dt.30.03.2013 drawn on State Bank of India, Lingapalem branch towards the part payment of promissory note debt.

The plaintiff presented the said cheque on 30.03.2013 in State Bank of India,

Chintalapudi branch but the said cheque was returned unpaid for the reason funds insufficient as per bank memo dt.05.04.2013. The plaintiff got issued notice on 22.04.2013 and the same is received by the defendant and issued reply notice on 13.05.2013 with false. The plaintiff filed complaint under section 138 of N.I.Act

before Judicial to the defendant for the above promissory note amount and

interest but the defendant though promised to repay the same but used to postpone the same. The plaintiff issued registered legal notice to defendant through his advocate on 17.6.2014 and the said notice was returned unserved.

Hence, the suit filed for recovery of the suit debt with subsequent interest.

3. Defendant filed written statement specifically denying the plaint allegations further contending that the defendant never borrowed any amount from the plaintiff and he never executed any promissory note. The defendant availed a loan from M.N.V.Satyanarayana is a financier at Chintalapudi and obtained a signed blank cheque and blank promissory note. Thereafter, he discharged the said loan, he took back the signed undated blank cheque and signed undated promissory note issued the said Financier on 02.02.2013. The defendant kept those documents in his scooter and when he went into a coffee hotel. The defendant returned to his house found his scooter box opened and missing of blank cheque and blank promissory note. Immediately, he presented a report to the SHO, Dharmajigudem on 02.02.2013. He strongly suspects that the plaintiff must have got those documents and got fabricated in her name by availing the services of the scribe and attestors with a view to gain wrongfully and enrich herself. The plaintiff never lent any amount to the defendant. The defendant had no capacity to lend such huge amount and the defendant has no necessity to borrow such huge amount. The suit promissory note is forged document. One E.Venkateswara Rao who is alleged to have scribed the suit promissory note is a close friend of the plaintiff’s husband. Hence, prayed to dismiss the suit.

4. Basing on the above pleadings, the following issues are settled for trial:

3.Whether the suit promissory note dated 02.01.2013 is true, valid and binding on the defendant ?

4.Whether the suit promissory note is brought into existence as pleaded by the defendant?

5.Whether the defendant is entitled for the benefits of Act 7/77 and Act 44/1987?

6.To what relief ?

5.During the course of trial, on behalf of the plaintiff, the plaintiff herself was examined as PW1 and one Palli Srinivasa Rao who is third party to the proceedings was examined as PW2 and got marked Exs.A1 to A17. On behalf of the defendant, the defendant himself was examined as DW1 and got marked

Exs.B1 to B3.

6. Heard arguments on both sides. The counsel for the plaintiff as well as counsel for the defendant filed their written arguments.

7. Issue No.1:

The learned counsel for plaintiff relied on the decision:

Chandra Shashi Vs Anil Kumar Verma in 1995 SCC (1) 421,

JT 1994 (7) 459 on 14 th November, 1994;

The learned counsel for the defendant relied on the decisions

1) John K.Abraham V.Simon C.Abraham and Another in 2014

(2) ALD (Crl.) 61 (SC) on 5 th December, 2013;

2) K.Ashok Kumar Goud Vs Sree Ramulu and another in 2017 (1) ALT (Crl.) 320 (A.P.) on 23 rd December, 2016;

3) Basalingappa Vs Mudibasappa in 2019 (2) ALT (Crl.) 1 (SC) on 9 th April, 2014.

To decide the fact in issue it is fit and proper to go through the oral and documentary evidence let in by both the parties. PWs 1 and 2 filed their chief affidavit in support of plaintiff’s plea. DW1 filed chief affidavit in support of the defence plea.

PW1 in her cross examination deposed that she owned agricultural land in an extent of Ac.5.00 cents at Tholikarayudupalem which was given under lease. She cannot say it survey number. She also running kirana shop and also looking after the ration shop which was licensed in the name of her unmarried daughter. She did not obtain any license in respect of the kirana shop.

She admitted that she has filed a cheque bounce case against the defendant; the said cheque bounce case is that the defendant has issued the questioned cheque in discharge of the present Ex.A1/pronote debt. She deposed that she has filed the original pronote in the said cheque bounce but the same was not marked; the said cheque bounce case was ended in acquittal. She deposed that she has preferred appeal against the said acquittal and the same was allowed and remanded to the lower court. She does not have any documentary proof to show that by the time of execution of alleged Ex.A1/pronote she was in possession of the amount as mentioned in the said pronote and as such she did not file any document before the court. After one month after execution of Ex.A1/pronote, she demanded the defendant for repayment of the debt covered under

Ex.A1/promissory note. She admitted that she is the white ration card holder. She deposed that during the life time of her husband, they obtained white ration card and the same has been continued till date. She admitted that Government have issued white ration cards only to poor people having income of Rs.10,000/- per annum. She leased out Ac.5.00 cents of land orally to one Pingula Gandhi @

Rs.50,000/- per acre per annum. There is no written instrument for the said lease.

She is income tax assesse since 2011. She showed the present debt transaction under Ex.A1/pronote for Rs.9,00,000/- in the balance sheet of her income tax returns. She admitted that she could not file the relevant balance sheet of her income tax before the court. She know that the defendant has Ac.13.00 cents of land. She admitted that the defendant is financially sound. Other than the present transaction, she lent more than 2 lakhs to one Veerraju and nearly Rs.3lakhs to one Talam Sreenivasa Rao. She deposed that she filed respective suits against them and before decree Veerraju compromised the matter and paid the settled amount and after decree the said Talam Sreenivasa Rao paid the decree amount.

She deposed that she filed the said pronote in the court of Chintalapudi but the said pronote was not marked. She admitted that Ex.A1/pronote does not contain the stamp and seal of Chintalapudi court evidencing that she has filed the said pronote before Chintalapudi Court. She admitted that after dishonor of cheque she has issued legal notice through the counsel at Chintalapudi on 22.04.2013; the copy of notice shown to her is the said notice Ex.B1 issued to the defendant. She has deposed evidence before Judicial Magistrate of First Class, Chintalapudi in

C.C.No.38/2014. She deposed that when the learned counsel questioned her whether she possess Ac.0.77 cents. She did not depose in C.C.38/2014 that the original pronote is not in her possession. She deposed that the original pronote was handed over to the counsel. Ex.B2 is the red marked portion in the deposition of PW1 in C.C.No.38/2014 on the file of Judicial Magistrate of First Class,

Chintalapudi. She admitted that C.C.No.1035/2016 on the file of Judicial

Magistrate of First Class, Chintalapudi filed by her against the defendant she

deposed evidence wherein she stated that she is a house wife. She admitted that at present she is continuing in white ration card.

One Palli Srinivasa Rao who is third party to the proceeding was examined as PW2 deposed in his cross examination he is doing commission business relating to paddy and corn since 2006. He does not have any documentary proof to show that she was present at the time of alleged Ex.A1 transaction. He could not sign Ex.A1/pronote either as attestor or the scribe or in any other capacity. He deposed evidence in the crime case in C.C.No.1035/2016 on the file of Judicial Magistrate of First Class, Chintalapudi filed by the plaintiff against the defendant. He could not depose in the said case that he was present at the time of alleged transaction under Ex.A1 as there was no reference of suit transaction in that case. He admitted that he deposed in criminal case in respect of his occupation as Secretary, District Forum under Right to Information Act. He went to the house of the plaintiff on the date of alleged transaction under Ex.A1 to unload paddy as himself and plaintiff are doing commission business and he sold the paddy to her. He went to the house of plaintiff at around 10.00 a.m and stayed there till 12 noon. By the time he went there three persons were present and he along with unloading coolies six in number went there.

DW1 in his cross examination deposed that he studied 10th class. He cannot read or write script or matter. Plaintiff is also resident of their village.

There are no other disputes between them. He never personally run any wine shop. He deposed that in the year 2014 wine shop in his name was permitted to run wine shop. Upon his instructions his counsel sent reply notice dt.13.05.2013 relating to dishonor of cheque. For the first time he has seen the copy of Ex.A1 when he received the case documents along with suit summons. He admitted that the content of his reply notice is that after discharging the debt to

MNV.Satyanarayana, Financier of Chintalapudi. The cheque and pronote were returned to him which he has kept in his scooter which was stationed before coffee hotel later found missing. He admitted that he has given a report to

Dharmajigudem Police Station with regard to cheque and promissory note. He has filed the receipt of complaint. He admitted that he content in his reply that the missing cheque and pronote are the documents which this suit and the complaint

before Chintalapudi Court were filed. He got mentioned in his pleadings that at the

instance of plaintiff’s husband the suit documents were fabricated and concoted.

There are signatures of the attestors in Ex.A1. The scribe of Ex.A1 is resident of their village. She does not know whether the plaintiff’s daughter filed a criminal case against the scribe of Ex.A1. The land covered under survey No.168/8 does not relates to him whereas the land covered under survey No.177/1 relates to him. He deposed that there are items in Survey No.1771/. The document shown to him relates the land covered under Survey No.168/8, 177/1 which is in his name. He admitted that the property under EX.A15 was attached under Order 38

Rule 5 of CPC. He has approached register office for rectification of Ex.A15 on 03.08.2017 the document shown to him relates to Ex.A16/rectification deed. He admitted that the land covered under survey No.168/8 was sold by him on 03.08.2021; the boundaries with regard to the petition schedule property in I.A are one and the same to the land she has sold on 03.08.2021. He admitted that a criminal case was filed against him at Dharmajigudem Police Station basing on the receipt/Ex.A8 alleged to have been issued by the SHO of Dharmajigudem.

16. The contention of the defendant that her husband used to blindly follow Muneeswara Rao of Chityala village. Muneeswara Rao is a person indulged the defendant’s husband in the clutches of money lender by name one Raju where the actual money borrowed was taken by the said Muneeswara Rao. Ex.B2 i.e., reply notice issued by the counsel for defendant’s son elaborately mentioned all the facts existed between defendant’s family and Muneeswara Rao and his son.

Certain serious allegations against them were alleged. Hence, it could be revealed that by the date of issuance of Ex.B2 dated 15.1.2014 there is severe stained relationship between the defendant’s family and said Muneeswara Rao and his son by name G.V.V.Satyanarayana. It is also revealed the said Muneeswara Rao and his son filed several cases and notices against all the family members of defendant even against the other son who is working at Australia and that the defendant’s family to avoid the controversies and litigations agreed for unfair compromises also. Further it was also contended that the houses of the defendant,

Muneeswara Rao and his son are intervened by two houses in the same street of

Chityala and were at one time very close to the defendant’s husband who used to follow the words of G.Muneeswara Rao. The said Muneeswara Rao and his son used to have food at their (defendants) house for four or five years as they have no female assistance, when defendant and her husband stayed with their son at

Hyderabad they used to give house keys for its maintenance and several aspects were mentioned showing their close intimacy and later development of ill feelings when the family of the defendants did not act on the words of Muneeswara Rao and his son.

17. Ex.B3 is the certified copy of plaint in OS No.31/2014 filed by Gadde

Muneeswara Rao against Nandina Surya Prakash, S/o Ramachandra Rao. Ex.B4 is the certified copy of written statement filed by Nandina Surya Prakah in OS

No.31/14 on the file of Additional District Judge, Kovvur in which it was averred as follows “ The plaintiff is very much know that the defendant has been staying at Australia, but he sent the notice to the address at Chityala village “. Apart from the other allegations which are common in all the matter pointing out the conduct and character of said G.V.V.Satyanarayana and his father Muneeswara Rao towards their family. Ex.B5 is the certified copy of plaint in OS No.32/2014 on the file of Additional District Judge, Kovvur filed by Gadde Veera Venkata

Satyanarayana against Nandina Chandra Kiran. Ex.B6 is the certified copy of written statement filed by Nandina Chandra Kiran in OS 32/14. Though the said

Muneeswara Rao and G.V.V.Satyanarayana Rao are not the parties to this suit and the suits filed by them against the family members of the defendant have no relevancy to the suit transaction.

Section 6 of Indian Evidence Act reads as follows: that

Relevancy of facts forming apart of same transaction- Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. The evidence let in by PWs.1 to 3 shows that the said

G.V.V.Satyanarayana is following up their case.

Section 7 of Indian Evidence Act reads as follows: Facts which are the occasion, cause or effect of facts in issue.- Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an transaction, are relevant.

Section 8 of Indian Evidence Act reads as follows :Motive, preparation and previous or subsequent conduct – Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact and whether it was previous or subsequent thereto.

There are serious allegations raised by the defendant that the plaintiff is a name lender in the hands of G.Muneeswara Rao and his son Gadde Veera Venkata

Satyanarayana and that the plaintiff has no capacity to lend such huge amount.

18. The evidence of PW.1 though suppressed the relationship with Gadde

Veera Venkata Satyanarayana at first instance of his cross examination later he deposed that Gadde Veera Venkata Satyanarayana also attended to the engagement function of his daughter and he is the brother in law of his son in law. He deposed that he do not know whether Gadde Sattibabu of Chityala village is Gadde Veera Venkata Satyanarayana. He do not know whether Gadde Veera

Venkata Satyanarayana attended the Court on that day and also for every adjournment. He admitted that since 2006 the defendant has been residing at

Hyderabad and deposed that he had shown the address of defendant at Chityala.

At first instance he deposed that the defendant is residing at Hyderabad and further deposed that she is staying with her son by going there now and then. He do not remember the name of advocate through whom he issued notice to defendant but his surname is ‘Yalamati’. He has not gone through the contents of the written statement filed by the defendant. From the above facts the burden rests upon the plaintiff to prove the defendant has executed Ex.A1 on 12.7.2011 with regard to source of income/capacity to lend. He deposed that he cannot say whether he do not have Rs.10,000/- in saving account of his bank. This show how carelessly the plaintiff is prosecuting the matter. He is not bothered the pleadings and contentions of the defendant. He is not deligent to prove his source of amount/income when there is a plea that the plaintiff is not a solvent person to lend such huge amount and that the said Gadde Veera Venkata Satyanarayana and his father who are behind back, who have close intimacy with the defendant ‘s family filed this suit basing on fabricated and forged document to put the family in disaster as he owed to see their end. Under these circumstances proof of solvency is needed. According to PW.1 during acquisition of his land covered under RS No.660/3, 661/2 and 478 by the Government for Polavaram Project situated at Avupadu of Nallajerla Mandal the government issued cheques for more than 30 lakhs in his favour drawn on SBI, Tadepalligudem and SBI,

Nallajerla in the year 2007. Immediately he drawn the amount and kept in his house. If it is true there is every possibility for the plaintiff to file even a single proof either proceedings of the land acquisition or drawal of the cheque amount or amount credited during that period in his account. Nothing is placed before the court to show that he is solvent . Further he deposed that one month prior to execution of Ex.A1 he was having rupees five lakhs. There is no evidence with regard to the remaining amount how he secured and lend. Coming to the attester

PW.1 deposed that he called Hanumantha Rao while he was proceeding infront of his house and that the said Hanumantha Rao is his cousin. He admitted that the said Hanumantha Rao is not a resident of Singarajupalem. He is resident of

Tadepalligudem. It is not the version of PW.1 that as PW.2 is his relative who visited his house he was shown as attester. According to PW.1 he secured

Y.Rama Rao the other person through his farm servant at 3.15 PM. By that time defendant, her husband and another attester G.V.V.Satyanarayana who is resident of their village were present. When the defendant vehemently contended that there is no such person by Garapati Veera Venkata Satyanarayana at Chityala village the plaintiff did not made an attempt to examine or show that the Garapati

Veera Venkata Satyanarayana is present in their village. Though the defendant’s counsel suggested PW.1 that there is no such person by name Garapati Veera

Venkata Satyanarayana in their village but he is Gadde Veera Venkata

Satyanarayana shown as attester and that wantonly they withheld to file his evidence affidavit that if he is examined the truth will come out. Obviously the plaintiff should have examined the said Garapati Veera Venkata Satyanarayana.

19. Even according to PW.3 he deposed that he know Gadde Veera Venkata

Satyanarayana and admitted that the said Gadde Veera Venkata Satyanarayana came to the court on that day of his examination. He do not know the relationship between the plaintiff and Gadde Veera Venkata Satyanarayana .

20. As per chapter 7 (3) of Indian Evidence Act 1872 section 101 envisages that whoever decides any court to give judgment as to any legal right or liability dependent on the existence of the facts which he asserts must prove that those facts exists. When a person is bound to prove the existence of any fact it is said that the burden proof lies on that person. Section 102 envisages the burden of proof in a suit or proceedings lies on a person whose if no evidence at all given on either side.

21.The obligation to prove one’s assertion generally will be on the plaintiff.

The initial burden is cast upon the plaintiff to prove his case unless until the defendant admits the execution of Ex.A1. Here in the case on hand the defendant denied the execution apart from the execution several serious allegations were averred. The defendant also questioned the capacity of the plaintiff by contending that plaintiff is a name lender and henchmen of said Muneeswara Rao and his son and at their instance this case is filed. So the initial burden is upon the plaintiff to prove that he is having source of income which he lent to the defendant under

Ex.A1. The plaintiff though deposed that his land was acquired by the

Government and compensation of Rs.30,00,000/- was also given to him. No doubt it is based on the record (documentary evidence) when there is possibility for plaintiff to prove the said fact by showing any of the incident where the amount was credited to his account withdrawal etc., the plaintiff did not take any steps except the oral evidence no tangible evidence is placed. Inspite of having possibility to prove the said fact the plaintiff did not made any attempts or move even his little finger to discharge the burden of proof.

Section 114 of Indian Evidence act envisages the court may presume the existence of any fact which it thinks likely to have happened regard being had to the common cause of the natural events human conduct and public and private business in their relation to the facts of particular case. Section 114 (g) envisages that the court may presume that evidence which could be and is not produce would if produce, be unfavourable to the person who with holds it.

22. Hence here case on hand the plaintiff utterly failed to discharge the burden of proof cast upon him moreover the evidence let in by plaintiff clearly shows that they are interested to the persons rather than truth. Hence could not be given credibility to their evidence. Further the said Gadde Veera Venkata

Satyanarayana is following the proceedings as the plaintiff failed to prove the initial burden.

23. The question of considering the experts opinion does not arise as it is not a conclusive proof of evidence. No doubt the expert opinion which is obtained in the judicial proceedings can be taken judicial notice only when the other evidence corroborates the plaintiff’s case. Here in the case on hand the burden which is upon the plaintiff was not shifted the question of placing rebuttal evidence by the defence only arises when the plaintiff discharge his initial burden.

The execution is doubtful. The source of income of plaintiff was not proved. The oral and documentary evidence let in by the plaintiff, the direct and circumstantial evidence does not lie in favour of plaintiff as the plaintiffs case appears to be suspicious. Under these circumstances this court feels that the plaintiff utterly failed to prove his case. Hence, issue no.1 is settled against plaintiff.

24. Issue No.2: In the result, Suit is dismissed with costs.

Typed to my dictation by Stenographer directly on computer, corrected and

pronounced by me in the open court, this the 12thday of September, 2022.

JUDGE,FAMILYCOURT-CUM-

VII ADDL. DISTRICT JUDGE, ELURU.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:- FOR DEFENDANT:-

PW.1: Kambhampati Padmavathi DW.1:Thakkelapati Pullarao PW2: Palli Srinivasa Rao

DOCUMENTS MARKED

FOR PLAINTIFF:-

Ex.P1 : Original promissory note dated 02.01.2013 Ex.P2 : certified copy of cheque bearing No.001102 dt.30.03.2013. Ex.P3 : Certified copy of cheque return memo dt.05.04.2013. Ex.P4 : Office copy of notice got issued to the defendant dt.28.12.2015. Ex.P5 : Original postal receipt of legal notice dt.23.12.2015.

Ex.P6 : Original reply notice dt.01.01.2016.

Ex.P7 : Certified copy of Calender and Judgment copy of in Crl.Appeal No.343/2015 on the file of I Addl.District Judge, Eluru dt. 26.04.2017. Ex.P8 : Certified copy of report given by defendant along with receipt issued by the Police and written statement filed in C.C.No.38/2012, Chintalapudi during 313 Cr.P.C examination dt.02.02.2013. Ex.P9 : Certified copy of letter addressed by the SHO, Dharmajigudem dt.29.07.2015. Ex.P10 : Attested copy of receipt No.33 dt.03.02.2013 issued by the SHO of Dharmajigudem PS along with complaint. Ex.P11 : Certified copy of FIR No.68/2016 of Dharmajigudem PS issued against the defendant. Ex.P12 : Certified copy of Charge sheet filed against the defendant in Cr.No.68/2016 of Dharmajigudem PS dt.28.11.2016. Ex.P13 : Certified copy of Criminal Appeal No.472/2019 on the file of VIIIth Additional Sessions Judge’s Court, Eluru. Ex.P14 :` Certified copy of Criminal Appeal No.328/2019 on the file of VIIIth Additional Sessions Judge’s Court, Eluru. Ex.P15 : Certified copy of sale deed 04.11.2010 obtained through Meeseva. Ex.P16 : Rectification deed with regard to the extent, dt.03.08.2017. Ex.P17 : Registered extract of sale deed dt.03.08.2021.

FOR DEFENDANT:

Ex.B1 : Notice

Ex.B2 : Red marked portion in the deposition of PW1 in C.C.38/2014 on the file of Judicial Magistrate of First Class, Chintalapudi. Ex.B3 : Photo copy of Ration card.

VII ADDL.DISTRICT & SESSIONS JUDGE,

ELURU, WEST GODAVARI.

Plaint presented on: 28.03.2006

Plaint filed on : 28.03.2006

IN THE COURT OF JUDGE, FAMILY COURT-CUM-VII ADDITIONAL DISTRICT

JUDGE :: WEST GODAVARI AT ELURU.

Present: Smt.P.Manga Kumari,

Judge, Family Court – cum – VII Additional District Judge

West Godavari, Eluru Friday, this the 18th day of November, 2022.

ORIGINAL SUIT No.85/2012 (Old O.S.NO.423/2006)

Between: Jammisetti Hanumantha Rao S/o Veeraraghavayya, Hindu, Male, aged 50 yrs, Business, Bapulapadu mandal, Hanuman Junction, Krishna District. …Plaintiff

And

Jarugu Srinivasa Rao S/o Pothuraju, Hindu, Male, aged 35 yrs, R/o Appanaveedu, Gudivada Road, Hanuman Junction, Krishna District. … Defendant

This Suit is filed by the plaintiff against the defendant for grant of permanent injunction restraining defendant, their men and followers from ever interfering with the plaintiff’s peaceful possession and enjoyment of the item Nos 1 and 2 of the plaint schedule properties and for costs.

Value of the suit:

This being a suit for the relief of permanent injunction is valued at

Rs.5,000/-. On which a court fee of Rs.411/- is paid under section 26(c)

Schedule.I, Article-1 (b) and (c) of APCF and SV Act of 1956.

CAUSE OF ACTION:

The cause of action for the suit arose, when the Veeraraghavayya had adopted the plaintiff and his brother Venkateswara Rao; that when the said

Veeraraghavayya executed a settlement deed on 01.09.1976; that when both the plaintiff and his brother jointly partition deed all the properties devolved from the

Veeraraghavayya on 14.12.2004; that when the defendant trying to create new rights over the schedule properties by fabricating and concocting certain documents; that when the elders also reprimanded the defendant their men and followers; where the defendant is situated at Appanaveedu village is within the jurisdiction of this Hon’ble Court.

This suit is coming on 19.10.2022 for final hearing before me for hearing in the presence of Sri M.Lakshman Kumar, learned advocate for the plaintiff and of Sri T.Jagan Mohan, learned advocate for the defendant upon perusing the material on record and upon hearing arguments on both sides, and the matter having stood over consideration, this Court DOTH ORDER AND DECREE as follows:-

(i) that the suit be and same is hereby dismissed without costs;

(ii) that the each party do bear their own costs; //Copy of Plaint Schedule is attached to decree//

Given under my hand and the seal of the Court, this the 18th day of November, 2022.

VII ADDITIONAL DISTRICT JUDGE,

WEST GODAVARI, ELURU.

No costs memo filed on either side

VII ADJ.,

W.G. Eluru.

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1

IN THE COURT OF THE LRAT -CUM- II ADDITIONAL DISTRICT JUDGE,

WEST GODAVARI :: ELURU

Present:- SMT. P.Manga Kumari,

Chairman, LRAT -cum- II Additional District Judge, W.G., Eluru.

Friday, this the 4th day of April, 2025.

ARBITRATION ORIGINAL PETITION No.94/2019

Between:

Parvathaneni Sriranga Srinivasa Rao, S/o Venkata Reddiah Chowdary, Hindu, male, age 42 years, Duggirala Village, Pedavegi Mandal, W.G.District. …. Petitioner

And

1. The Competent Authority for LA (CALA), N.H.16 (EGK-SH-107) and Revenue Divisional Officer (Land Acquisition Officer), Eluru, W.G.District.

2. The Project Director, National Highway Authority India, PIU, Syamala Nagar, Rajamahendravaram, E.G.District.

3.The Arbitrator-cum-District Collector, West Godavari District, Eluru. … Respondents

This Arbitration OP is filed against the orders in R.Dis.No.e- 1346238/2018/G1, dated 11.08.2018 on the file of Arbitrator-cum-District Collector,

West Godavari District, Eluru.

Between:

Parvathaneni Sriranga Srinivasa Rao … Claimant

AND

1. The Competent Authority for LA (CALA), N.H.16 (EGK-SH-107) and Revenue Divisional Officer (Land Acquisition Officer), Eluru, W.G.District.

2. The Project Director, National Highway Authority India, PIU, Syamala Nagar, Rajamahendravaram, E.G.District.

…. Respondents

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2

This Arbitration OP has come on 09.03.2025 before me for final hearing in the presence of Sri E.Srinivasa Babu, Advocate for the petitioner and of Sri

M.Kini, Advocate for the Respondent No.2, and the Government Pleader appearing for the state/R1 and R3; and upon hearing the matter having stood over for consideration, till this day, this court made the following:-

O R D E R

This petition is filed by the Petitioner under section 34 of Arbitration and

Conciliation Act, 1996 (hereinafter referred to as Arbitration Act) to set aside the

Award in R.Dis.No.e-1346238/2018/G1, dated 11.08.2018 on the file of Arbitrator- cum-District Collector, West Godavari District, Eluru in pursuant to the Award No.20/2013/NH-5 dated.23.08.2013 passed by the 1st respondent and fix the compensation at the rate of Rs.10,000/- per square yard and direct the respondents to pay Rs.1,20,10,888/- towards the value of 568 square meters equivalent to 679 square yards acquired together with interest, solatium and other amounts thereon.

2. The grounds of appeal in brief are that the order of trial court is contrary to law, weight of evidence and probabilities of the case. The trial court erred in appreciating the facts stated by the appellant and simply dismissed the claim petition filed by the appellant which itself is quite illegal, arbitrary and against the principles of natural justice. The trial court failed to observe that the appellant sustained huge loss for the occupation of his house site, which is situated very nearer to the N.H.5 road at Duggirala village and it is not the landed property and the said property was house site and highly potential land and the appellant filed the same but the trial court without looking into the same simply mentioned that the land acquired is treated as agriculture land. The trial court miserably failed to see and observe the various contentions of the said claim petition. The trial court failed to scrutinize the documents filed by the appellant/claimant and ignored the said documents and did not take into consideration of the said documents which is crucial documents. The trial court erred in passing the order that the documents

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3 filed by the appellant are sufficient to prove the claim and on the sole ground alone the award is liable to set aside. The trial court failed to see and observe that prior to the acquisition the land was converted for non-agricultural purpose but the competent/concerned authorities without considering the above facts, assessed the value very lesser than the market value prevailing in the vicinity by the acquisition notification. The trial court did not consider the plea of the appellant that the house site of the appellant/claimant is very valuable and the market value will be higher than the registered values being mentioned on the sale deed. The trial court failed to observe that the house site lost by the appellant/claimant is intended for construction of dwelling house and the area, where the site is situated, became commercial area and the market value per square yard was more than Rs.10,000/- in Duggirala Village by the time of acquisition notification.

The trial court completely ignored the fundamentals and principles of law, while adjudicating the matter and absolutely there is no legal discussion about the issues involved in the matter and miserably failed to see how the appellant failed to prove his case according to issues and issues involved in this case were not framed and properly answered. Hence, the order dated 11.08.2018 is liable to be set aside.

3. Counter filed by the 2nd respondent specifically denying the petition allegations and further contending that the 2nd respondent is not a proper and necessary party, that the requisition for the acquisition was made by the Project

Director, Project implementation Unit, Vijayawada. The acquired lands fall within the jurisdiction of Project Implementation Unit, Vijayawada. Hence, the 2nd respondent is not the requisitioning authority and the 2nd respondent is not a necessary party. The suit is bad for mis-joinder and non-joinder of necessary parties. Hence prays to dismiss the Petition with costs.

4. Counter filed by the 1st respondent which was adopted by the 3rd respondent specifically denying the petition allegations and further contending that the petitioner filed the above petition with false contents only to cause inconvenience to the respondents departments and that there is no prima facie

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4 case in his favour and that it is not within the time and liable to be dismissed. He further contended that the National Highway Authority of India has been constituted under National Highways Authority of India Act, 1988(Act 8 of 1988) with an object to develop, maintain and manage the National Highways in the country. The preamble of the Act inter alia reads as under:

“An Act to provide for the constitution of an Authority for the development, maintenance and management of National Highways and for matters connected therewith or incidental thereto.”

The National Highways Authority of India headed by chairman and members with its head office at New Delhi and the Project Implementation Units are functioning all over the country and the Project implementation Unit at

Vijayawada is headed by the Project Director for implementation of the projects as per the technically approved drawings. The Project implementation Unit,

Vijayawada is carrying out the work at National Highway for stretch of land from

Km.1022.494 to Km.1053.230 and Km.1055.680 to Km.1058.040 of NH-5 on

Vijayawada-Gundugolanu section. The present appeal preferred by the petitioner is of insignificant value in the eyes of law and they are frivolous and vexation. Any entertainment of this appeal on the frivolous grounds will lead to miscarriage of justice. The petitioner has not made any representation before the CALA and

Revenue Divisional Officer, Eluru by submitting their grievance about the compensation and therefore the petition is not entitled to prefer appeal against the

Award passed by the CALA and Revenue Divisional Officer, Eluru. The petitioner filed the present petition to set aside the award passed by the Arbitrator under section 34 of the Arbitration and Conciliation Act, 1996, in which there is no provision to consider the claims that were disallowed by the Arbitrator. As per the said section, there is no valid grounds for the petitioner to seek set aside of the finding of the Arbitrator in respect of the disallowed claims. The court has no authority to set aside an award on the ground that the Arbitrator has come to wrong conclusion of facts and it cannot re appreciate the evidence and reassess

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5 the evidence to arrive at different findings. The 1st respondent has been conferred powers to perform the functions of the competent authority of Land Acquisition under clause (a) of section 3 of N.H.A.I Act 1956 in respect of stretch of land from

Km.1022.494 to Km.1053.230 and Km.1055.680 to Km.1058.040 of NH-5 on

Vijayawada-Gundugolanu section vide notification S.O 2067(E) dated 07.08.2009 published in Gazette of India issue No.1226 dated 07.08.2009 and vide amended notification S.O.No.1185(E) dated 24.05.2012 published in the Gazettee of India issue No.981 dated 24.05.2012.

In pursuance of published notification under section 3A(1) of the said Act, 8 objection petitions have been received against the proposed acquisition of land and on enquiry under section 3C, dated 31.03.2012 in the office of Revenue

Divisional Office, Eluru, the objections filed by the Ryoths mainly on the point of rate per acre which will be decided for compensation are disposed off. Hence, notification under section 3(D)(1) and 3D(2) of the Act has been proposed for approval through the Project Director, NHAI, PIU, Vijayawada and the

Government of India in its notification S.O 2773(E) dated 22.11.2012 in exercise of the powers conferred under the said section declared that the lands specified in the schedule acquired for the aforesaid purpose and in pursuance of the sub section (2) of 3(D), the land shall vest absolutely with the Central Government free from all encumbrances. The said notification was published in the E.O issue part-II section 3 of sub section (ii) of the Gazette of India. Issue No.2290 dated 22.11.2012.

As per section 3G(3) of National Highways Act, 1956, public notice has been issued on 30.01.2013 inviting the interested persons/enjoyers to file their claims for the land proposed for acquisition to establish their title over the land

before the Competent Authority Land Acquisition and Revenue Divisional Officer,

Eluru, West Godavari District on 15.03.2013. The public notice was published in the local news papers, “Hindu and Andhra Jyothi” in English and Telugu respectively on 06.02.2013. Accordingly, the competent authority conducted

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6 enquires on 15.03.2013 and recorded statements from the land owners/enjoyers or their representatives indicating their respective interest and verified pattadar passbooks and other relevant documents from the interested persons.

For the purpose of arriving the market value of the land covered by acquisition, the competent authority gathered registration statistics from the Sub-

Registrar Office, Eluru of Eluru mandal for a period preceding 3 years of the date of publication of notification under sec.3A(1) i.e., from 26.11.2008 to 25.11.2011.

There are all together 8 sale transactions occurred in the vicinity. The basic value of the land is Rs.7,20,000/- per acre on notification from 26.11.2008 to 25.11.2011. All the transactions occurred in the vicinity is Rs.7,20,000/- per acre, with regard to the structures existing in the lands covered by acquisition were assessed by the R& B Department, Government of A.P., Eluru.

An extent of land measuring 42,641 square meters situated in various R.S numbers of Duggirala village, Pedavegi mandal, West Godavari District has been acquired by the NHAI for stretch of land from Km.1022.494 to Km.1053.230 and

Km.1055.680 to Km.1058.040 of NH-5 on Vijayawada-Gundugolanu section. The land was acquired as per the National Highways (Land Acquisition) Act, 1956. The competent Authority Land Acquisition & RDO, Eluru has fixed the market value and passed an award No.20/2013. The basic values as on the date of notification and after revision, the villages of Duggirala of Pedavegi Mandal, the lands in both villages are agriculture in nature, sugarcane and wet paddy cultivating through bore well water. The Villages are situated in high potential developing area for commercial and residential usage future. So an uniform rate should be adopted for the agriculture lands and residential lands. Otherwise, if any discrepancy it will lead to future litigation. By considering all parameters, the CALA and Revenue

Divisional Officer, Eluru has fixed Rs.7,50,000/- per acre for agricultural land i.e.,

Rs.185/- per square meter and Rs.1914/- per square meter for residential plots and additional compensation at 10% on land value under section 3G of National

Highways Act, 1956 and 30% towards solatium as per the instructions from NHAI

Head Quarters, New Delhi.

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7

The Competent Authority (Land Acquisition) has taken into consideration of all aspects and passed a reasoned Award for payment of compensation at

Rs.185/- per square meter with additional benefits under section 3G of NH Act in respect of RS No.372/1B1. Dissatisfied with the compensation awarded, the

Awardee has made application before the Arbitrator for enhancement of compensation. The Arbitrator conducted enquiry and the both parties have appeared before the Arbitrator and contested the case. The Arbitrator discussed all the points and passed Award in details vide R.Dis G1/4497/2014 dated 25.10.2014 and confirmed the rate fixed by the CALA/Revenue Divisional Officer at Rs.185/- per square meter in RS No.372/1B12. The Arbitrator clearly mentioned in the Award that the Right to Fair Compensation and Transparency Land

Acquisition Rehabilitation and Re-Settlement Act 2013 and land acquisition Act, 1984 is not applicable for the national Highways Act, 1956. The petitioner is claiming the amount at Rs.10,000/- per square yards is very high. The CALA and

Revenue Divisional Officer, Eluru has taken all aspects and passed the Award very reasonably. The acquired property of Duggirala village is not a commercial area and which is mostly an agricultural area. The documents relied by the petitioner is far away from the lands under acquisition. Hence, prayed to dismiss the petition with costs.

Counter filed by the 1st respondent specifically denying the petition allegations except admitting the acquisition of land by the Government and further contending that the acquisition proceedings are concerned the acquisition was made by following procedure established by law petitioner is concerned and also various provisions of National High Act, 1956 and the 1st respondent fixed the market value at Rs.7,50,000/- per acre (Rs.185/- per square meter) and also

additional compensation 10% and 30% towards solatium as per the instructions of

NHAI Head Quarters, New Delhi. While arriving at the conclusion the respondent followed due process of law i.e., applying principles of fair play and justice and gave ample opportunities to the petitioner and conducted enquiry and recorded statements from the land owner and verified pattadar pass books and relevant

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8 document submitted by the land owners. The respondent inspected the lands in the vicinity including those to be acquired with the transactions that took place on 27.06.2013 and also taken into consideration the basic value of the proposed land which is Rs.7,20,000/- per acre as on the date of notification. The sale transactions of the lands in the vicinity registered at Sub-Registrar‟s office, Vatluru is preceding three years from the date of the 3(A) notification have been obtained and the values mentioned therein are taken into consideration while fixing the compensation amount. The 4th respondent followed usual methods of fixation of the land compensation of comparative sales method (sale statistics) and also taken into consideration the average income on the lands per year less the expenditure. The basic values of the land proposed under acquisition is

Rs.7,20,000/- as on notification, basic values are revised with effect from 01.04.2013, present basic value is Rs.8,00,000/- per acre taking into the consideration. As per the revision of basic values, when compared with the basic values at the time of notification, the enhancement is Rs.80,000/- for 3 years. So if average increase per year taking up to passing of award it comes to

RS.7,50,000/- as the lands are abutting to the N.H-16(5) and potential for developing as commercial and residential. So after taking into consideration of all the above points, it is just and reasonable to fix the market value for the agricultural lands is at Rs.7,50,000/- per acre or Rs.185/- per square mete4r and an additional compensation at 10% on the land value and 30% towards solatium under section 3G of National Highway Act, 1956 as per the instructions vide

N.H.A.I Head Quarters, New Delhi, Lr.No.NHAI/11013/DGM/LA/Coord/2013/

FTS/56/41099 dated 05.07.2013. The complainant land is under agricultural category and recorded in the Government records as Dry lands. The basic value registered in the Sub Registrar‟s office for R.S No.125/2A2 is Rs.7,20,000/- as on notification. Petitioner has not converted the land into non-agricultural lands, hence not entitled for claiming non-agricultural category rate. The respondent taken into consideration all aspects of the matter, and followed social security measures contemplated under part-III and part-IV of the Indian Constitution i.e.,

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9

Fundamental Rights and Directive Principles of State Policy and coupled with various provisions of National High Ways Act. The granting of 10% additional value and 30% towards solatium is such social security measure. Against the award of the Revenue Divisional Officer, Eluru a reference is made under section 3 and 5 of NH Act, before the District Collector, who is the arbitration authority to take cases under section 3 and 5 of the National High Way Act, for enhancement of the land compensation fixed by 1st respondent. The petitioner engaged an

Advocate of good caliber to canvas his case before Arbitrator-cum-District collector, West Godavari District, Eluru who considered all aspects of the matter according to law, weight of evidence and probabilities of the case opined that market value fixed by the respondent-Revenue Divisional Officer, the genuine and there is no other reasons to consider the arbitration application filed by the claimant for enhancement of the land compensation and accordingly the request of the petitioner/claimant for enhancement of the compensation is rejected, more particularly the claim of the petitioner on prevailing market value is baseless. This court has no jurisdiction to entertain this appeal under the provisions of National

High Ways Act and also under section 34 of the Arbitration Act. Even for a moment assuming without admitting that the said O.P is filed under section 34 of the Arbitration Act even then this Arbitration O.P is not maintainable. Because the award and reference made by respondent and the Arbitrator-cum-District

Collector, West Godavari, Eluru does not suffer from any irregularity contrary to any public policy. Moreover, the said proceedings are not vitiated by any error of law on the face of the record and the Arbitrator never exceeded his jurisdiction.

The Court has no jurisdiction to re-apprise the evidence and it is not open to it to sit an appeal over the conclusions of the Arbitrator. Moreover, the said proceedings are not vitiated by any error of law on the face of the record and the

Arbitrator never exceeded his jurisdiction. The Court has no jurisdiction to re- apprise the evidence and it is not open to it to sit an appeal over the conclusions of the Arbitration.

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5. Aggrieved by the award, the petitioner has referred the dispute for the arbitration before the Arbitrator cum-the District Collector, West Godavari at

Eluru. The learned Arbitrator after hearing all the parties has issued proceeding in

R.Dis.No.e-1346238/2018/G1, dated 11.08.2018 rejecting the arbitration referred by the petitioner and confirmed the orders passed by the learned CALA.

Aggrieved by the orders passed by the Arbitrator-cum-the District Collector, West

Godavari, Eluru dated 11.08.2018 the petitioner filed this petition under section 3G(6) of the NH Act, 1956 and section 34 of the Arbitration and Conciliation Act, 1996. The application filed by the petitioner does not come under the purview of section 34 of the Arbitration and Conciliation Act, 1996. The scope is very much limited. Hence, prayed to dismiss the petition with costs.

6. Heard. Perused the material on record.

Now, the point for determination is

Whether the petitioner could satisfy the conditions as laid down under

Section 34 of Arbitration Act for setting aside the order in R.Dis.No.e-

1346238/2018/G1, dated 11.08.2018 on the file of Arbitrator-cum-District

Collector, West Godavari District, Eluru?

POINT:

7. The DGM(L.A&Coord) NHAI, New Delhi vide their letter in

NHAI/11013/DGM(LA&Coord/2012/929 dated 21.09.2012 clarified that the

Government of India in its Notification 2773(E) MORT& H dated 22.11.2012 declared that the land specified in the schedule acquired for the said purpose and in pursuance of the sub section (2) of Sec.3(d) the land shall vest absolutely with the Central Government free from all encumbrances.

8. The findings of the Revenue Divisional Officer in his award that he has verified sale transactions 3 years prior to the acquisition i.e., from 2008 till 2011 there are no sale transactions. For the year 2009 in and around the surrounding lands, the sale transactions relating to 2009 reflects that the basic value is

Rs.5,10,810/- per acre is in between 4 and 5 lakhs. The sale transactions relating

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11 to the year 2010 are in between 4 and 5 lakhs whereas, the sale transactions relating to the year 2011 fetched an amount of Rs.72,64,480/- per acre and 72,79,360/- per acre. The Authority discarded these transactions on the ground that they are far away and the transaction is house site building. He also observed that the basic values are revised with effect from 01.04.2013. Present basic value is Rs.8,00,000/- per acre taking into the consideration. As per the revision of basic value when compared with the basic values at the time of notification, the enhancement comes to Rs.7,50,000/- as the lands are abutting to the N.H.16(5) and potential for developing as commercial and residential. So after taking into consideration of all the above points, it is just and reasonable to fix the market value for the agricultural lands is at Rs.7,50,000/- per acre or Rs.185/- per square meter and an additional compensation at 10% on land value and 30% towards solatium under section 3G of National Highway Act 1956 as per the instructions vide N.H.A.I., Head quarters, New Delhi, Lr.No.NHAI/11013/DGM/LA/Coord/2013/

FTS/56/41099 dated 05.07.2013 which communicated by the Project Director,

PIU, Vijayawada vide Lr.No.11082/LA/PIU/V/NHAI/2013/735 dated 16.05.2013 and the guidelines issued by Government of Andhra Pradesh Transport Roads &

Buildings (R.11) Department Memo No.13001/R.11(1)/2001-1 dated.07.05.2002.

9. Out of extent of 42641 square meters proposed for acquisition, 4288 square meters which covered under residential category (Converted lands). The basic values are obtained from Sub-Registrar‟s office for the above lands and it is

Rs.1500/- per square yards at the time of notification. It is also revised from 01.04.2013 @ Rs.1800/- per square yard. These lands cannot be compared with the agriculture lands as the lands were developed and levelled to make it fit for residential use. The house sites are nearer to the Duggirala main village. The lands are adjoining to the National Highways are having more potential value and further the lands are very nearer to the Eluru Municipal Corporation. Hence, taking into consideration of Sub-Registrar‟s basic value and it is fixed at Rs.1600/- per square yard or Rs.1914/- per square meter and an additional compensation at 10% on land value and 30% towards solatium and to add 5% towards damages

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12 as per section 3G subsection 7(c) and (d) of National Highway Act 1956 and as per the instructions of vide N.H.A.I., Head quarters, New Delhi,

Lr.No.NHAI/11013/DGM/LA/Coord/2013/FTS/56/41099 dated 05.07.2013 which communicated by the Project Director, PIU, Vijayawada vide

Lr.No.11082/LA/PIU/V/NHAI/2013/735 dated 16.05.2013 and the guidelines issued by Government of Andhra Pradesh Transport Roads & Buildings (R.11)

Department Memo No.13001/R.11(1)/2001-1 dated.07.05.2002.

10. The petitioner/appellant has notified as land holder to the total and under acquisition measuring 43 square meters in R.S No.125/2A2 of Duggirala village of Pedavegi mandal. As per Enjoyment Survey, the petitioner is identified and enjoying the same. At the time of award enquiry, he did not attend and produce any documentary evidence to prove their title over the land. No one else has claimed right over the above land. Therefore, it is hereby ordered that the compensation amount of Rs.1,47,112/- is ordered to be paid to the petitioner.

11. As the application filed for setting aside the Arbitrator Award in accordance with sub-section(2) of section 34 of Arbitration and Reconciliation Act.

The proceedings under section 34 of the Act are summary proceedings and is not in the nature of regular suit. Only an exceptional cases when a chance was not given to the parties at the time of enquiry before the Arbitrator to prove their bonafidies. In the general course in the proceedings under section 34 of the Act, the additional evidence is not permissible and the Appellate Tribunal is not empowered to conduct afresh enquiry. Hence, this Tribunal feels that it is not fit and proper to take into consideration any additional evidence let in by the parties except the record which is already available and basis for passing of the award.

12. Even as per the findings of the competent Authority (RDO), the revised basic values from 01.04.2013 @ Rs.1800/- per square yard, but he has fixed @

Rs.1600/- per square yard. Even according to him, the lands are more potential and developed which are nearer to Eluru municipal Corporation. Basing on the findings of the Revenue Divisional Officer, the Arbitrator has proceeded in passing the award without even considering all the above facts. As observed by Hon‟ble

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13

High Court in Kurra Venkateswara Rao Vrs. Competent Authority, Land

Acquisition and Manager-II, National Highway Authority of India,

Vijayawada-8, reiterating several Hon‟ble Apex Court‟s decisions in Para No.23 that “All the judgments referred to above deal with scope of interference of Court under Section 34 of the Arbitration and Conciliation Act. But, one important aspect that is to be noted is that the disputes involved in all the cases referred to above, are commercial disputes where two commercial parties agreed to have their dispute resolved through arbitral reference. Even in those cases, the Apex Court held that interference under Section 34 is warranted where the findings of the Arbitrator are perverse; shocks the conscious of the Court; where it goes to the root of the matter; and when the Award is in conflict with the public policy of this country.” in Para No.28 that “ The expression "recourse to a court against an arbitral award" is a comprehensive and inclusive expression and it cannot be construed that the power of the Court is limited only to set aside the award and leave the parties in a position much worse than what was contemplated or deserved before commencement of the arbitral proceedings. Therefore, we hold that the expression "recourse to a court against an arbitral award" appearing in Section 34(1) cannot be construed to mean only a right to seek set aside of an award; it could be either for setting aside or for modifying or for enhancing or for varying the award. This view of ours gets support from the Division Bench Judgment of the Madras High Court in the case of Project Director, Madurai v. M.Vijayalakshmi and Ors. 9, wherein, it has been held that the right to have a re-course to a Court is a substantial right and the right is not liable to be curtailed by the form in which the right has to be enforced or exercised. Apart from that, as observed, the power given to the Court under Section 34 is only supervisory in nature, which is somewhat similar to Section 115 of C.P.C., meaning thereby, the Court can vary or revise the Award if need be in the circumstances of the case”. in Para No.29 that “ The Apex Court dealt with the aspect of modification, in the case of Gautam Constructions and Fishers Limited v. National Bank for Agricultural and Rural Development 10 , wherein the parties entered into an agreement for sale and purchase of office accommodation in respect of built up area of 48,000 square feet at the rate of 400 per square feet. The transaction was governed by two agreements one of which MANU/TN/1404/2020 (2000) 6 SCC 519 prescribed the rate of Rs.250/- per square feet, another relating to amenities at Rs.150/- per square feet. Dispute arose between the parties and the matter was referred to arbitration. The Arbitrator allowed Rs.400/- per square feet and interest at 18% per annum. A petition was filed under 1940 Act to make the award a rule of the Court. The award debtor filed a petition for setting aside the same. The learned single Judge of Madras High Court upheld the claim for

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14 a rate of Rs.400/- per square feet modifying the interest part. The Division Bench reversed the same and reduced the rate to Rs.150/- per square feet and also the rate of interest. When the matter was taken on appeal to the Supreme Court, the Hon'ble Supreme Court fixed the rate at Rs.250/- per square feet. As observed by the Madras High Court in Ms.G. v. Isg Novasoft Technologies (Original Petition No. 463/2012) decided on 2/9/2014, the modification in Gautam Constructions and Fishers Limited's case, was not the one covered by Clauses (a), (b) or (c) of Section 15 of the 1940 Act”.

in para No.30 that “In Tata Hydro Electric Power Supply Co. Ltd. v. Union of India11, a dispute arose out of an agreement between the appellant Company and the Union of India, for supply of electric power on railway tracks which was referred to arbitration. The Arbitrator awarded a sum of Rs.4.00 Crores to the claimant, payable with interest at 12% per annum. The petition filed by the Union of India under Section 34 was allowed by a learned [2003 (4) SCC 172] Judge and the award was set aside, on the ground that the dispute could be resolved only under Section 26 of the Indian Electricity Act, 1910 and not through private arbitration. The Division Bench confirmed the said view and Tata Hydro Electric Power Supply Co. Ltd., took the matter in appeal to the Supreme Court. After holding that the dispute was not covered by Section 26 of the Special Enactment, the Supreme Court reversed the judgments of the High Court. Consequently, the award passed by the Arbitrator was upheld. However, the Hon'ble Supreme Court modified the order, restricting interest only from the date of the award and not from the date of submission of bills. This case arose only under the 1996 Act. Though in this case also, the question relating to the power of the Court to modify the award was not specifically addressed, it is a matter of fact that the award was in fact modified by the Hon'ble Supreme Court”.

in Para No.31 that “The issue in Hindustan Zinc Limited v. Friends Coal Carbonisation 12 pertains to a contract for the sale and supply of metallurgical coke. The award passed by the Arbitrator was modified by the District Court. In the appeal filed under Section 37 of the Act, the same was allowed upholding the award in its entirety. On challenge, the Hon'ble Supreme Court set aside the order of the High Court and restored the judgment of the trial court. In the said case, the Hon'ble Supreme Court did not specifically address the issue as to whether the Court has got 2006 (4) SCC 445 power to modify the award. But, however, affixed a seal of approval on the decision of the trial court modifying the award”.

in Para No.32 that :At this stage, it would be appropriate to refer to the judgment of the Apex Court in Mc Dermott International Inc. v. Burn Standard Co. Ltd.13 wherein the Supreme Court was dealing with a

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15 challenge to various partial/interim awards as well as a final award passed by the Arbitrator, appointed by the Supreme Court. The Arbitrator in that case first passed a partial award. Thereafter, applications under Section 33 of the 1996 Act were filed on the ground that certain claims had not been dealt with by the Arbitrator in his partial award. Though a preliminary objection was raised with regard to the entitlement to pass a partial award, the Arbitrator passed an additional award. It was only thereafter that an application under Section 34 was filed questioning both the partial award and the additional award. During the pendency of the application, a final award was also passed and an application challenging the same under Section 34 was filed. Several questions arose before the Supreme Court, including the question as to whether a partial award is permissible in law. Taking note of the radical departure made in the 1996 Act from the 1940 Act, the Supreme Court observed in paragraph 52 as follows”:

"The 1996 Act makes provision for the supervisory role of Courts, for the review of the arbitral award only to ensure fairness. Intervention of the Court is envisaged in few circumstances only like in case of fraud or bias by the arbitrators, violation of natural justice etc. The Court cannot correct errors of arbitrators. It can only quash the award leaving the 2006 (11) SCC 181 parties free to begin the arbitration again if it is desired. So the scheme of the provision aims at keeping the supervisory role of the Court at minimum level and this can be justified as the parties to the agreement make a conscious decision to exclude the Court's jurisdiction by opting for arbitration as they prefer the expediency and finality offered by it." in Para no.33) that “t is also to be noted here that in Krishna Bhagya Jala Nigam Ltd. vs. G.Harischandra Reddy 14 the Hon'ble Apex Court modified the award. Similarly, the Bombay High Court in Union of India vs. Artic India 15 and High Court of Delhi in Union of India vs. Modern Laminators 16 modified the Award passed by the Arbitration. From the judgments of the Apex Court, referred to earlier in the previous paragraphs, it is clear that the Apex Court did not deal with expression "set aside" appearing in Section 34, but still modified the order. Even in Mc Dermott International Inc.'s case the said issue was not dealt with and the judgment did not give any interpretation to the expression "set aside" appearing in Section 34”.

in Para No.34 that “ From the various decisions of the Supreme Court and of the different High Courts, the judicial trend appears to favour interpretation that would read into Section 34, a power to modify, or revise or vary the award. This view also gets support not only from the judgment of the Single Judge of Madras High Court in Ms.G. v. Isg Novasoft Technologies's case, but also from the two Division Bench judgments of the High Court in AIR 2007 SC 817 (2007) 4 Arb. L.R. 524 (Bom) (2008)

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16

Arb. L.R. 489 (Del) Project Director, Madurai's case and Gayatri Balaswamy v. ISG Novasoft Technologies Ltd”.

in Para No.35 that “as acquisition of land is concerned, the same is for the benefit of the person who is losing the land, especially in rural areas. This being a beneficial legislation, the court would normally see that the loser of the land would get just and reasonable amount as compensation, basing on the law existing and the guidelines issued from time to time”.

in Para No.36 that “The doctrine of eminent domain empowers the sovereign to acquire land for public use. The 44th amendment, which took away right to property, ensured that right to property is no longer a fundamental right, but rather a constitutional/legal right and in the event of breach, the remedy is to seek compensation at the market value. The word compensation deployed in Article 31(2) implies full compensation, that is the market value of the property at the time of acquisition. It should be equivalent to what the owner has been deprived of”.

In State of Maharastra v. Chandrabhan Tale 18 Justice O.Cinnappa Reddy speaking for the bench observed that fundamental right to property has been abolished because of its incompatibility with the goals of 'justice', social, economic and political' and 'equality of status and of opportunity' and with the establishment of 'a socialist democratic republic'. Therefore, the MANU/TN/2293/2014 1983 AIR 803 displaced persons have to be compensated to the extent they are entitled to, for which we feel that a check over the orders passed by the arbitrator, who is the 'District Collector', is required, having regard to Article 300A of the Constitution and the policy of the country”.

in Para No.37 that “In view of the above findings, it is now to be seen whether the findings arrived at by the Arbitrator requires any modification or whether the said findings are opposed to public policy”.

in Para No.38 that “Before proceeding further, it would be appropriate to note that the lands were compulsorily acquired from the agricultural ryots, for extending the highway. In other words, the cases which we are dealing with relate to compulsory acquisition of land, by which a person is deprived of his property and livelihood. Compulsory acquisition of lands came to be made under the provisions of National Highway Act, 1956. Prior to this Act came into force, the acquisition of lands were made under Land Acquisition Act, 1894. By virtue of Act 16 of 1997, Section 3 of N.H. Act stood substituted with Section 3A - giving power to acquire the land. Section 3B to 3J deal with various steps to be taken for acquisition of the lands. Section 3C - hearing of objections, 3D - declaration of acquisition, 3E - power to take possession, 3F - right to enter into land where land has vested with the Central Government, 3G - determination of amount payable

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17 as compensation, 3H - deposit and payment of amount, 3I - competent authority to have certain powers of civil court and 3J - Land Acquisition Act 1 of 1894 do not apply. Therefore, the acquisition of lands under the National Highway Act are to be made in consonance with Section 3A to 3H of National Highway Act. It is also to be noted that if the party is not agreeable or not satisfied with the amount of compensation awarded under 3G, the claimant can ventilate his grievance before an Arbitrator, appointed by the Central Government. The District Collector of each District was authorized to act as an Arbitrator under the Act, for determining the amount of compensation payable. From the above, it is clear that the amount fixed by the Arbitrator i.e., the District Collector will attain finality if the power to modify or vary the award is excluded from the jurisdiction of the Court. It is also to be noted that the scheme of National Highways Act which mandates deposit of amount determined under Section 3G as required under Section 3(1) of 3H clearly demonstrates that there is a major shift as to how land losers have to be treated vis-à-vis the provisions of the Land Acquisition Act, 1894. As held by the Division Bench of the Madras High Court in Project Director, Madurai's case, if the District Court finds that the award passed by the Arbitrator is against the principles of fair play and justice, all that can be done is to set aside the award and leave the land loser to work out his remedy under the law. If such an approach is to be adopted under the N.H. Act, the purpose of substitution of existing Section 3 of the N.H. Act with Sections 3A to 3J would be rendered redundant. In fact, it has been held that by substituting Section 3 of the N.H. Act, the land loser would be in a worse position than 1894 Act, which at least provides for a reference to civil court”.

in Para No.39 that “Apart from that, it is also to be noted that applicability of provisions of Arbitration & Conciliation Act, 1996 shall be subject to provisions of National Highway Act. Therefore, it is accepted and well established that the substantive legislation being the National Highway Act and the Arbitration Act being a procedural one, the procedure to be adopted by the competent authority while determining as to whether the amount of compensation fixed by the competent authority under Section 3G(1) or 3G(2) was proper or not. The procedural law is always in aid of justice, not in contradiction or to defeat the very object which is sought to be achieved by substantive law. Procedural law is always subservient to the substantive law”.

in Para No.40 that “What would be the effect if the District Collector, who is Arbitrator, is given all the power to fix the quantum of compensation to be paid? If the quantum of compensation awarded has no rationale or that the same came to be made without any basis or that the quantum of compensation awarded is unreasonable, the poor agriculturist would be left with no remedy except to accept the amount awarded by the Arbitrator. If

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18 the interpretation as sought for by the counsel for respondents is accepted, the Court can at the most set aside the award and send it back to the Arbitrator. But that does not appear to be the intention of the legislature while enacting the National Highway Act. Its purpose is to acquire the land and settle the amount at the earliest, but, at the same time, such a settlement shall not be to the whims and fancies of the Arbitrator or the Land Acquisition Authority. There has to be some check in one form or the other by the Court, thereby the agricultural ryots, whose lands are being taken away by the State, would get just and reasonable amount as compensation.

13. Their Lordships observed in National Highways Authority of

India Vrs. P.Nagaraju and others reported in arising out of Civil appeal

No.4671/2022 decided on 11.07.2022 at para No.11 that “……………In that light, the limited scope available under Act, 1996 to assail an award as provided under Section 34 of the said Act is also to be kept in view even in these appeals. While doing so, what cannot also be lost sight of is the fact that the arbitration was not initiated based on an agreement entered into between the contracting parties under a contract but is under a statutory provision which provides for such arbitration in lieu of „reference‟ under the regime for acquisition of land for public purpose. One of the parties to such arbitration proceedings would also be a land loser and the adjudication in the arbitration proceedings is not based on any definite terms of the contract providing for mutual obligations determinable under the contract but for determination of „just compensation‟ in respect of land which is compulsorily acquired for a public purpose. Notwithstanding the same, the broad perspective relating to the limited grounds to challenge an award under Section 34 of Act, 1996 also is to be kept in perspective since the arbitration is governed by Act, 1996. In para No.12. …………………. It is contended that the factors to determine the compensation payable to the land loser as provided in Section 3G(7)(a) of the NH Act can only be the basis. In that view, it is contended that the parameters contained in Section 28 of RFCTLARR Act, 2013 cannot be taken into consideration. The contention in that regard is that while determining the market value, the definite parameters as contained in Section 3G(7)(a) of NH Act alone would be applicable and in view of the provisions contained in Section 3J of NH Act the provisions of the Land Acquisition Act shall not be made applicable.

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19

In para No.15 …….We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Sections 23(1-A) and (2) and interest payable in terms of Section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3-J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional In para No.16: While arriving at the conclusion that notification bearing SO No.2368(E)dated 28.8.2015 whereunder the provisions of RFCTLARR Act, 2013 are made applicable, it is noted that NH Act is also one of the enactments specified in the Fourth Schedule. The relevant portion of the notification dated 28.08.2015 reads as hereunder: “And whereas, the Central Government considers it necessary to extend the benefits available to the land owners under the RFCTLARR Act to similarly placed land owners whose lands are acquired under the 13 enactments specified in the Fourth Schedule; and accordingly the Central Government keeping in view the aforesaid difficulties has decided to extend the beneficial advantage to the land owners and uniformly apply the beneficial provisions of the RFCTLARR Act, relating to the determination of compensation and rehabilitation and resettlement as were made applicable to cases of land acquisition under the said enactments in the interest of the land owners……………….. In para No.17 The observations contained also in para 29, 30 and 31 in Tarsem Singh (supra) will make it more than evident that this Court was concerned about discrimination in determination of compensation under different enactments though in that case the issue was limited to solatium and interest. The said paras read as hereunder:- “29. Both, P. Vajravelu Mudaliar and Nagpur Improvement Trust clinch the issue in favour of the Respondents, as has been correctly held by the Punjab and Haryana High Court in Golden Iron and Steel Forging. First and foremost, it is important to note that, as has been seen hereinabove, the object of the 1997 Amendment was to speed up the process of acquiring lands for National Highways. This object has been achieved in the manner set out hereinabove. It will be noticed that the awarding of solatium and interest has nothing to do with achieving this object, as it is nobody‟s case that land acquisition for the purpose of national highways slows down as a result of award of solatium and interest. Thus, a classification made between different sets of landowners whose lands happen to be acquired for

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20 the purpose of National Highways and landowners whose lands are acquired for other public purposes has no rational relation to the object sought to be achieved by the Amendment Act, i.e. speedy acquisition of lands for the purpose of National Highways. On this ground alone, the Amendment Act falls foul of Article 14.

30. Even otherwise, in P. Vajravelu Mudaliar, despite the fact that the object of the Amendment Act was to acquire lands for housing schemes at a low price, yet the Amendment Act was struck down when it provided for solatium at the rate of 5% instead of 15%, that was provided in the Land Acquisition Act, the Court holding that whether adjacent lands of the same quality and value are acquired for a housing scheme or some other public purpose such as a hospital is a differentiation between two sets of landowners having no reasonable relation to the object sought to be achieved. More pertinently, another example is given – out of two adjacent plots belonging to the same individual one may be acquired under the

principal Act for a particular public purpose and one acquired under

the Amending Act for a housing scheme, which, when looked at from the point of view of the landowner, would be discriminatory, having no rational relation to the object sought to be achieved, which is compulsory acquisition of property for public purposes.

31. Nagpur Improvement Trust has clearly held that ordinarily a classification based on public purpose is not permissible under Article 14 for the purpose of determining compensation. Also, in para 30, the Seven-Judge Bench unequivocally states that it is immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired, as, if the existence of these two Acts would enable the State to give one owner different treatment from another who is similarly situated, Article 14 would be infracted. In the facts of these cases, it is clear that from the point of view of the landowner it is immaterial that his land is acquired under the National Highways Act and not the Land Acquisition Act, as solatium cannot be denied on account of this fact alone.” In Para No.18. In that view of the matter, though Section 3G(7)(a) of the NH Act provides the parameters to be taken into consideration, it only provides the basic parameters to be taken note of, for determining the amount payable as compensation. While applying the said parameters for determination of compensation, since RFCTLARR Act, 2013 is also applicable as NH Act is contained in Fourth Schedule, the factors as provided under Section 26 and 28 RFCTLARR Act, 2013 including the seventh factor will also be applicable in appropriate cases for the determination of the market

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21 value as fair compensation for the acquired land. When land is acquired from a citizen, Articles 300A and 31A of the Constitution will have to be borne in mind since the deprivation of property should be with authority of law, after being duly compensated. Such law should provide for adequately compensating the land loser keeping in view the market value. Though each enactment may have a different procedure prescribed for the process of acquisition depending on the urgency, the method of determining the compensation cannot be different as the market value of the land and the hardship faced due to deprivation of the property would be the same irrespective of the Act under which it is acquired or the purpose for which it is acquired. In that light, if Section 28 of RFCTLARR Act, 2013 is held not applicable in view of Section 3J of NH Act, the same will be violative of Article 14 of the Constitution……. In para No.23………….However, in the process of determination of just and fair compensation, the provisions in Section 26 to 28 of RFCTLARR Act, 2013 will be the guiding factor. The requirement therein being adverted to, should be demonstrated in the award to satisfy that Section 28(2) and 31(3) of Act, 1996 is complied. Therefore, what is also to be kept in perspective while noticing the validity or otherwise of an award regarding which the non-furnishing of reasons is contended as patent illegality is the reason assigned for determining just compensation in terms thereof. The situation which may arise in cases when a lesser compensation is determined in the arbitration proceedings and the land loser is complaining of the award is also to be kept in perspective since the requirement of reasons to be given by the learned Arbitrator in cases for determination of market value and compensation should indicate reasons since the same will have to be arrived at on a comparative analysis for which the reasons should be recorded and Section 26 to 28 of RFCTLARR Act will be relevant. Neither the land loser nor the exchequer should suffer in the matter of just and fair compensation. Hence the reasons under Section 31(3) is to be expected in that manner, the absence of which will call for interference under Section 34 of Act, 1996. In Para No.24. Leaving aside the facts in the instant case for a while, if in a matter as against the determination of the market value by the SLAO, the land loser had referred to the exemplar sale deeds and seeks higher compensation than prescribed in the guidance value, and in that circumstance, if no reasons are assigned by the learned Arbitrator for such determination and either approves the SLAO award or awards a lesser amount than the actual entitlement, in such circumstance the arbitration process which is thrust on the land loser

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22 should not be an impediment and limited interference should not be a reason to deny the just and fair compensation. In such cases while examining the award in the limited scope under Section 34 of Act, 1996, the Court is required to take note as to whether the evidence available on record has been adverted to and has been taken note by the Arbitrator in determining the just compensation failing which it will fall foul of Section 31(3) and amount to patent illegality. Therefore, while examining the award within the parameters permissible under Section 34 of Act, 1996 and while examining the determination of compensation as provided under Sections 26 and 28 of the RFCTLARR Act, 2013, the concept of just compensation for the acquired land should be kept in view while taking note of the award considering the sufficiency of the reasons given in the award for the ultimate conclusion. In such event an error if found, though it would not be possible for the Court entertaining the petition under Section 34 or for the appellate court under Section 37 of Act 1996 to modify the award and alter the compensation as it was open to the court in the reference proceedings under Section 18 of the old Land Acquisition Act or an appeal under Section 54 of that act, it should certainly be open to the court exercising power under Section 34 of Act, 1996 to set aside the award by indicating reasons and remitting the matter to the Arbitrator to reconsider the same in accordance with law. The said exercise can be undertaken to the limited extent without entering into merits where it is seen that the Arbitrator has on the face of the award not appropriately considered the material on record or has not recorded reasons for placing reliance on materials available on record in the background of requirement under RFCTLARR Act, 2013. In para No.48………………… In the circumstance where we have opined that the award passed by the learned Arbitrator suffers from patent illegality and appropriate consideration is necessary, the only course open is to set aside the award and allow the learned Arbitrator to reconsider the matter on that aspect. In para No.49. From the conclusion reached above, in both the set of cases it is evident that awards passed by the learned Arbitrator is to be set aside and the matters be remanded in terms of Section 34(4) of Act, 1996 so as to enable the learned Arbitrators to assign reasons to arrive at their conclusion. ……………..

14. Their Lordship has in depth discussed the competency of this court while deciding this petition. Their Lordship observed that this Tribunal has only

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23 limited scope under section 34 of the Act. The Court is required to take note as to whether the evidence available on record has been adverted to and has been taken note by the Arbitrator in determining the just compensation failing which it will fall foul of Section 31(3) and amount to patent illegality. Their Lordship observed that if the award passed by the learned Arbitrator suffers from patent illegality and appropriate consideration is necessary. The only course open is to set aside the award and allow the learned Arbitrator to reconsider the matter on that aspect.

15. In view of the observations made by the Hon‟ble Apex Court in

National Highways of India Vs. P.Nagaraju and others, the contention of the

CALA and as per the award the petitioner did not produce any record or proof in proof of his contention that the value of the property is Rs.10,000/- per square meter. The record does not reveal that they verified the sales of three years prior to the notification. Further they have taken Rs.7,50,000/- as basic value, though it is mentioned as Rs.8,00,000/-. The contention of the Petitioner is that it is not an agricultural land.

16. On considering all the facts and circumstances and the contention of the petitioner that he is the title holder to the property and is worthy land on which he is depending. He was not given opportunity to prove his bonafidies. This

Appellate tribunal is of view that a chance is to be given to the appellant. „Adi alterm partem‟ as it is his property which he has owned; it is just to give a fair chance to hear and to decide. This court feels that petitioner land does not come under land ceiling Act or having any liability but it is outcome of their efforts which should be justified by giving fair and just compensation. As per the observations of

Hon‟ble Apex Court, it is fit and proper to remand the matter to reconsider the

matter. Point is answered accordingly

17. In the result, the petition/arbitration OP is allowed by setting aside the Order dated 11.08.2018 in R.Dis.No.e-1346238/2018/G1 passed by the learned Arbitrator-cum-District Collector, West Godavari District, Eluru by remanding the matter to the learned Arbitrator to reconsider the matter by giving

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24 an opportunity to the petitioner to prove his bonafides and to decide afresh in accordance with law. In the circumstances of case, each party shall bear their own costs.

Typed to my dictation by the Stenographer Gr-I, corrected and pronounced by me in open Court, on this the 4 th day of April, 2025.

Sd/- P.Manga Kumari

LRAT- CUM-II ADDL. DISTRICT JUDGE,

W.G., ELURU.

Appendix of Evidence Witnesses Examined (No oral or documentary evidence is adduced on either side).

Sd/- P.Manga Kumari

LRAT-cum-II A.D.J.,

W.G., ELURU.

--1--

THE COURT OF JUDGE, FAMILY COURT-CUM-VII ADDITIONAL DISTRICT

JUDGE :: WEST GODAVARI AT ELURU.

Present: Smt.P.Manga Kumari

Judge, Family Court – cum –VII Additional District Judge

West Godavari, Eluru Friday, this the 18th day of November, 2022.

ORIGINAL SUIT No.9/2017 (OLD O.S.No.283 of 2009)

Between:

Chinta Venkateswara Rao S/o Raghavayya, Hindu, Male, aged 63 years, Business, D.No.8-168, Vijayawada, Hanuman Junction, Bapulapadu mandal.

…Plaintiff

And

1.Jammisetti Hanumantha Rao S/o Sri Nageswara Rao, Hindu, Male, aged 60 yrs, Business, D.No.8-168, Vijayawada Road, Hanuman Junction, Bapulapadu mandal.

2.Jarugu Srinivasa Rao S/o Pothuraju, Hindu, Male, aged 43 yrs, Business, Appanaveedu, Pedapadu mandal.

3.Chalamalasetti Lakshmi Savitri W/o Sri Purnachandra Rao, Hindu, Female, aged 49 yrs, Husband’s protection, D.No.78-71/1, PLapayya Yadav Nagar, Kuthbullapur Municipality, Rangareddy District.

4.Smt.Jarugu Mahalakshmi W/o Sri Jarugu Pothuraju, Hindu, Female, aged 68 yrs, House wife, Gudiwada road, Appanaveedu, Pedapadu mandal.

(D4 is added as per the orders dated 06.11.2017 in I.A.No.1037/2017) … Defendants

This suit is coming on 08.11.2022 for final hearing before me for hearing in the presence of Sri S.V.R.Gandhi, learned advocate for the plaintiff and of Sri M.Lakshman, advocate for D1 and of Sri T.Jagan Mohan, Advocate for D2 and D3 and of Smt. K. Kalyani, Advocate for D4 and upon perusing the material on record and upon hearing arguments on both sides, and the matter having stood over consideration till this day, this Court delivered the following:-

J U D G M E N T

This Suit is filed by the plaintiff against the defendants to pass a decree directing the partition of the plaint schedule property into three equal shares by ignoring the settlement deed executed by the 3rd defendant in favour of the 2nd defendant and to allot one such share to the plaintiff for his separate possession and enjoyment; also granting permanent injunction restraining the 2nd defendant from ever interfering with the plaint schedule property in any manner and for costs.

--2--

2. The case of plaintiff in brief as per plaint averments is as follows:

i) Originally late Kammula Veera Raghavayya was the absolute owner of the said Ac.0.09 cents of site i.e the plaint schedule property. During his life time, he executed a Will dated 01.09.1973 in a sound and disposing state of mind bequeathing the said property to the plaintiff, 1st defendant and one Jammisetti

Srinivasa Rao with absolute rights. The said will is his last will and testament. The said Kammula Veera Raghavayya executed a Codicil dated 15.09.1976 in a sound and disposing state of mind and made a modification to the bequests made under his Will dated 01.09.1976. The said Codicil is his last Will and testament. After the death of Kammula Veera Raghavayya, his last will dated 01.09.1976 and the Codicil

dated 15.09.1976 came into force and effect. Defendants 1 to 3 have knowledge,

notice and acquaintance about the said Will dated 01.09.1976 and Codicil dated 15.09.1976 of Kammula Veera Raghavayya and the bequests made the rounder.

The said Will and the Codicil were acted upon and they were referred to in the court proceedings all.

ii) It is further averred that as per the last Will and testament dated 01.09.1976 and the Codicil dated 15.09.1976 of Veera Raghavayya, the plaintiff, the 1st defendant and his brother Srinivasa Rao became entitled to 1/3rd share each in the plaint schedule property. Unfortunately, the 1st defendant’s brother

Jammisetti Srinivasa Rao died. So, the plaintiff is entitled to his 1/3rd share and the 1st defendant became entitled to his and his brother’s share i.e 2/3rd share in the plaint schedule property as his brother died issueless and intestate. The property is not partitioned till now. It is kept joint and the plaintiff and 1st defendant must be deemed to be in joint possession of the plaint schedule property. The 2nd defendant is the brother of the 3rd defendant. Both of them without any right, title or interest over the plaint schedule property fabricated settlement deed dated 12.03.2004 as if the 3rd defendant settled 242 sq.yards of site on the 2nd defendant. The 3rd defendant has no manner of right, title interest or possession over the said site and --3-- she is not entitled and cannot convey title to the said site in favour of the 2nd defendant when she herself had no title. Hence, the said settlement deed is not valid. It is null and void. The plaintiff and 1st defendant are not parties to the said settlement deed and so it is not binding on them. The plaintiff is entitled to ignore the same as nonest. It is feared that the 2nd defendant armed with the said invalid settlement deed may at any time trespass into the plaint schedule site by using force and violence. The defendants 2 and 3 are joined in this suit for seeking relief of permanent injunction against them. The 2nd defendant is not entitled to enter into the plaint schedule property arming himself with the said invalid settlement deed as it does not clothe him with any right or confer title on him. 1st defendant failed to cooperate with the plaintiff for partition of the property as per the bequest made by the testator late Kammula Veera Raghavaiah. It is liable to be partitioned into three equal shares and the plaintiff is entitled to 1/3rd share. In the January, 2009 the plaintiff finally requested the 1st defendant to cooperate to effect partition of the plaint schedule property by metes and bounds into three equal shares and to give separate possession of his 1/3rd share to him for his enjoyment. But the 1st defendant showed disinclination to do it necessitating the filing of this suit. The alleged settlement deed purported to have been brought into existence by defendants 2 and 3 is not valid and the plaintiff and 1st defendant can ignore the same as nonest as they are not parties to it. Therefore, the plaintiff need not ask for its cancellation. Hence, the suit.

3. 1st Defendant filed written statement specifically denying all the plaint allegations and further admitting the plea of the plaintiff that originally late Kammula

Veera Raghavaiah was the absolute owner of the said Ac.0.09 cents of site i.e plaint schedule property. During the life time he executed a Will dated 01.09.1976 in a sound and disposing state of mind bequeathing the said property to the plaintiff, 1st defendant and one Jammisetti Srinivasa Rao with absolute rights that the said

Will is last Will and testament and denying the plea that the said Kammula Veera --4--

Raghavaiah executed Codicil dated 15.09.1976 in a sound and disposing state of mind and made a modification to the bequeathed made under his Will dated 01.09.1976 and the said Codicil is his last Will and testament. He admitted that

Kammula Veera Raghavaiah’s last Will dated 01.09.1976 came into force and acted upon but it is false to say that the Codicil dated 15.09.1976 came into force and effect.

i) It is further averred that Kammula Veera Raghavaiah never executed any document subsequent to the execution of Will dated 01.09.1976 much less the alleged Codicil dated 15.09.1976 in a sound and disposing state of mind. There was no occasion to execute the alleged codicil by the said late Kammula Veera

Raghavaiah at any point of time and the same was not seen the light of the day earlier. The Will dated 01.09.1976 is the last and final Will of the said Kammula

Veera Raghavaiah and he did not execute any document subsequent to the said Will

dated 01.09.1976. The alleged execution of the codicil dated 15.09.1976 is nothing

but a fabricated one. It is not correct to state that there is no division of the properties in total extents in the Will dated 01.09.1976. The said Kammula Veera

Raghavaiah in the sound and disposing state of mind had executed a Will on 01.09.1976 bequeathing his properties in favour of the 1st defendant and plaintiff equally. The said Kammula Veera Raghavaiah has given Ac.0.03 cents of house site to the brother of the 1st defendant namely Jammisetty Srinivasa Rao out of Ac.0.09 cents of Tallamudi village and the remaining extent was given to the 1st defendant and plaintiff equally. Unfortunately, the said Jammisetty Srinivasa Rao died issueless. His wife also separated from his long back before his death. As such the plaintiff and the defednatn have partitioned the said Ac.0.03 cents of house site also equally on 14.12.2004. This defendant and the plaintiff have partitioned the properties which were inherited by them from the said Kammula Veera Raghavaiah in the presence of elders along with the said extent of Ac.0.03 cents of said

Jammisetti Srinivasa Rao. Since then the plaintiff and this defendant have been --5-- enjoying their respective properties peacefully. The plaintiff and his wife have made evil design to grab the entire plaint schedule property and they developed grudge and eyesore against this defendant and his family members and fabricated the alleged codicil dated 15.09.1976 alleged to have been executed by late kammula

Veera Raghavaiah by forging his signature. The said alleged codicil is not valid and the same was nothing but created one. No right or title is acquired by the plaintiff by virtue of alleged codicil dated 15.09.1976 as the same is nothing but fabricated one with the assistance of his henchmen. The plaintiff is no locus-standi to file this suit and unnecessarily impleaded the 1st defendant in the above suit as the plaint schedule property was already partitioned. The plaintiff has not entitled either for partition or permanent injunction of the plaint schedule property. There is no cause of action and the cause of action pleaded in the plaint is not a bonafide one.

The plaintiff has not come to the court with clean hand and prayed to dismiss the suit.

4. 2nd Defendant filed written statement and the same is adopted by defendants 3 and 4 specifically denying all the plaint allegations and further contending that the plaintiff is aware that the defendants 2 and 3 and their mother

Jarugu Mahalakshmi filed O.S.No.34 of 2004 on the file I. Addl. District Court, Eluru for partition of the properties left behind by late Jarugu Veera Raghavayya and for separate possession of 1/10th share to each of the plaintiffs. The plaint schedule property is one of the items of the plaint schedule in O.S.No.34 of 2004 though an extent of Ac.0.03 cents only shown instead of AC.0.09 cents. O.S.No.34/2004 is transferred to the court. Chinta Seetha Mahalskhmi, 11th defendant in that suit is the wife of the plaintiff in this suit. Among others, 11th defendant also raised a contention that during the life time of Veera Raghavayya, he executed a Will on 01.09.1976 and that he also executed a Codicil on 15.09.1976. This defendant is seriously challenging the truth and validity of the alleged Will and alleged codicil.

In fact issue also is framed on this question in O.S.No.34/2004 and witnesses are --6-- cross examined on the genuineness of the Will set up the 11th defendant in collusion with the plaintiff in the above suit. The plaintiff is not entitled to file the above suit without seeking declaration regarding his title about the Will upon by him and the suit is not maintainable and prayed to dismiss the suit.

5. Basing on the above pleadings, the following issues are settled for trial:

1.Whether the Codicil dated 15.09.1976 is genuine is duly executed by late Veera Raghavaiah?

2.Whether the plaintiff is entitled for partition of the plaint schedule property into 3 equal shares and allotment of one such share to him?

3.To what relief?

6. To substantiate the case of the plaintiff, the plaintiff himself was examined as PW1 and one Cherukuri Venkateswara Rao who is third party was examined as DW2, daughter of the plaintiff was examined as PW3 and got marked

Exs.A1 to A9. On behalf of the defendant, 1st defendant himself was examined as

DW1 and Kandada Venkata Ramakrishna who is third party was examined as DW2 and D2 was examined as DW3 and got marked Exs B1 and B2.

7. Heard arguments on both sides. The learned counsel for the 2nd defendant filed written argument. Perused the material on record.

For better appreciation, it is fit and proper to decide issue No.2 at first instance.

8. ISSUE No.2:

To decide the fact in issue it is fit and proper to go through the oral and documentary evidence let in by both the parties.

9. PWs 1 to 3 filed their chief affidavit in support of plaintiff plea. DWs 1 to 3 filed their chief affidavits in support of the defence plea.

10. PW1 in his cross-examination deposed that 1st defendant is his cousin (son of junior maternal aunt). One Jammisetti Srinivasa Rao and 1st defendant are --7-- brothers. 2nd defendant is his brother- in-law i.e step brother of his wife. He admitted that Kammula Veera Raghavaiah is his senior maternal uncle of himself, 1st defendant and Jammisetti Srinivasa Rao. He admitted that the contents of Ex.A1 is correct. Seetha Mahalakshmi is his wife. He has not issued any notice to 1st defendant prior to filing of suit seeking his cooperation to effect partition. He has not issued any notice to 1st defendant informing him that Kammula Veera

Raghavaiah executed Ex.A2 codicil subsequent to Ex.A1 Will. Kammula Veera

Raghavaiah died in the year 1976. Kammula Veera Raghavaiah has no children.

Jammisetti Hanumantha Rao/1st defendant was being looked after by Kammula

Veera Raghavaiah and his wife since his childhood. Kammula Veera Raghavaiah looked after him and 1st defendant as his foster children. He admitted that during the life time of Kammula Veera Raghavaiah, himself and 1st defendant resided in the house of Kammula Veera Raghavaiah. Kammula Veera Raghavaiah was carrying on rice mill business. During the life time of Kammula Veera Raghavaiah in his business 1st defendant used to extend his help to Kammula Veera Raghavaiah. He deposed that he also resided in his house to extend his help. He admitted that

Kammula Veera Raghavaiah executed settlement deed dated 07.09.1973 in favour of 1st defendant. He do not know whether there is recital in the settlement deed that 1st defendant looked after by Kammula Veera Raghavaiah since the 1st defendant was aged about 3 years and out of his love and affection towards him, he executed settlement deed. He do not know whether settlement deed was scribed by one Parvatham Venkata Subba Rao. He admitted that settlement deed was scribed by Parvatham Venkata Subba Rao. He deposed that another document was scribed by Parvatham Venkata Subba Rao within one year i.e from the date of execution of settlement deed by setting the remaining half share in the property covered by settlement deed. His wife Seetha Mahalaxmi/1st plaintiff is the daughter of his junior maternal uncle namely Jarugu Pothuraju. During the life time of

Kammula Veera Raghavaiah, there is no recital in Ex.A1 that his wife had taken care --8-- of Kammula Veera Raghavaiah and his wife. He admitted that Kammula Veera

Raghavaiah mentioned the reason as to why the bequeathed the properties covered by Ex.A1 in his favour and in favour of D1. By the time of execution of Ex.A1, LAOP 28/1976 was pending on the file of Senior Civil Judge’s Court, Gudiwada and it was filed by Kammula Veera Raghavaiah questioning the compensation granted by

Government. He admitted that in Ex.A1 Kammula Veera Raghavaiah bequeathed the compensation amount awarded in LAOP 28/1976 to his wife Eswaramma and also authorized his wife to prosecute the said case in case of his demise. He admitted that Kammula Veera Raghavaiah executed Ex.A1 in respect of all his properties which were in existence by the time of his death. Ex.A1 was scribed by

Parvatham Venkata Subba Rao through Kammula Veera Raghavaiah. He admitted that the settlement deed was executed in his favour and another settlement deed was also executed in favour of 1st defendant. He admitted that as per Ex.A1/Will the plaint schedule properties were allotted to his share and share of D1 and

Jammisetti Srinivasa Rao. He filed suit for Ac.0.09 cents of land against Jurugu

Srinivasa Rao and Chalamalasetti Laxmi Savithri. He admitted that he has not filed partition suit against D1 in respect of other properties covered by Ex.A1.

Subsequent to demise of Kammula Veera Raghavaiah, his wife Eswaramma came on record in LAOP 28/1976 contending that she got right over the amount of compensation to be awarded as per Ex.A1/Will. Himself and his wife were present at the time of execution of Ex.A2. He deposed that wife of Kammula Veera

Raghavaiah was also present. He admitted that he did not mention in his chief affidavit about the presence of his wife Kammula Veera Raghavaiah at the time of

Ex.A2. Himself and his wife were present throughout the execution of Ex.A2. Ex.A2 does not disclose the presence of wife of Kammula Veera Raghavaiah and it also does not contain the signatures and thumb impression of Eswaramma. Eswaramma is a marks woman. Eswaramma died in the year 1981. He do not remember who received compensation. He could not remember whether he has participated on her --9-- behalf in those proceedings either during her life time or subsequently. He could not remember whether he deposed in O.S.No.34/2004 as DW2 that there is no documentary proof available with him at present to show that he filed petition for impleading him as a party in LAOP 28/1976 and that since the entire record was destroyed he could not file that record as shown to him the copy of deposition. He has not brought it to the notice of court about the execution of Ex.A2 by Kammula

Veera Raghavaiah in the above referred LAOP. Eswaramma filed the original of

Ex.A1 in the above referred LAOP. He obtained return of original of Ex.A1 through his counsel from the court but he could not remember as to when he obtained the same. He admitted that he sold away his undivided share in Ac.20.00 cents of site in R.S.No.193/4 and RCC building in favour of 1st defendant. He has not filed any document to show that they got partitioned certain properties covered by Ex.A1.

Himself and D1 used to own Sri Krishna theatre at Hanuman Junction. He admitted that they did business jointly relating to the said theater. They availed loan from

Andhra Bank to purchase projector from Westrex company, Mumbai. They deposited the site which was standing in the name of his wife and in the name of

D1’s wife towards security in the said bank. He has not filed any document to show that he constructed house in 10 cents of land covered by Ex.A1/Will. He admitted that he has not filed any document to show that the original of Ex.A1 was deposited in bank only for the purpose of securing loan for construction of house in the site covered by Ex.A1/Will. He has not brought it to the notice of bank that Veera

Raghavaiah executed Ex.A2 codicil on 15.09.1976. He admitted that the scribe of

Ex.A2 did not scribe either the settlement deed executed in his favour or the settlement deed in favour of D1 or Ex.A1. Veera Raghavaiah got his document duly scribed through Parvatham Venkata Subba Rao. He got acquaintance with one

Cherukuri Srirama Murthy for the past more than 40 years. He do not know one

Ramisetti Srimanarayana. He admitted that Ex.A2 shows some corrections in respect of R.S.No.193 and R.S.No.183. Ex.A2 shows that R.S.No.183/5 is corrected as --10- - 188/5. There is overwriting against R.S.No.193/5. He admitted that there are no initials against corrections and there are no endorsement to that effect by the scribe of Ex.A2; Ex.A2 shows that there is no reference about Ac.0.10 cents of house site covered by R.S.No.188/5 was bequeathed under Ex.A1 to himself and D1. He admitted that he gave evidence in O.S.No.34/2004 stating that he came on record in LAOP 28/1976. He was given 1/3rd share in Ac.0.09 cents of land as shown in

Ex.A1. He deposed that himself and his wife filed the suit in O.S.No.170/2016 for declaration and injunction in respect of the schedule property covered by

Ex.A2/Codicil. He got schedule property by way of Will from Kammula Veera

Raghavaiah. Kammula Subbaiah is resident of Kaikaram and that he got information about relationship through his parents. He admitted that remaining items i.e itemNos 2 to 8 of the properties covered by O.S.No.34/2004 are the self acquired property of Veera Raghaviah. He do not know whether Veera Raghavaiah carried on Rice mill business along with Babuji Rao at Bapulapaudi. He admitted that the name of 1st wife of Pothuraju is Savitramma. After her demise Pothuraju married D4. Savitramma gave birth to one daughter and two sons namely

Nageswara Rao and Vijaya Ram Mohan Rao. Both sons of Savitramma are no more.

He do not know whether one Chellayamma and Kammula Subbaiah are the parents of Eswaramma. He admitted that he is the eldest person in age among the relatives of Veera Raghavaiah. He admitted that nothing was bequeathed by Veera

Raghavaiah in favour of his wife who is daughter of younger brother of Veera

Raghaviah i.e Pothuraju through his 1st wife. Ex.A1 is an unregistered Will. It is not even notarized. Veera Raghavaiah executed another document i.e. Codicil (Ex.A2) is dated 15.09.1976. One Cherukuri Sriramamurthy and Damarla Venkateswara Rao attested Ex.A2 and it was scribed by one Subrahmanyam. Under Ex.A1 he was given half share and Hanumantha Rao was given half share in Ac.4.00 cents land in addition to other properties. Subsequently under Ex.A2 the remaining half share was given to Seethamahalakshmi who is the daughter of younger brother of Veera --11- -

Raghavaiah Pothuraju and who is his wife.

They have not given any notice to family members of Pothuraju informing them that they acquired rights under Exs.A1 and A2. He deposed that by the time of execution of Ex.A1 there were five or six persons i.e Kammula Eswaramma, Jammisetti

Hanumantha Rao, Jammisetti Sesidevi, Parvatham Venkata Subba Rao, Nakka Rama

Rao, Kandada Venkata Charyulu, Chinta Seetha Mahalakshmi, who is his wife and himself were present. Nakka Ramarao is a rice mill driver in the rice mill of Veera

Raghavaiah. He admitted that he is only a signatory. Veera Raghavaiah called

Kandada Venkatacharyulu on the date of execution of Ex.A1 who is a clerk in the rice mill of Veera Raghavaiah. He do not know the reason as to why the Veera

Raghavaiah obtained the signatures of two attestors of Ex.A1 instead of obtaining the signatures of his relatives as attestors. Raghavaiah himself secured the presence of scribe of Ex.A1 i.e Parvatham Venkata Subba Rao who is a document writer.

At the time of execution of Ex.A2, himself, D1, wife of D1 and his wife Eswaramma were present. Under Ex.A2 no property was conferred in favour of Eswaramma by her husband. He admitted that Eswaramma who is the wife of Veera Raghavaiah died in the year 1981 he has not filed any documentary proof to show that the health condition of Veera Raghavaiah was good at the time of execution of Exs.A1 and A2. Till the demise of Eswaramma, himself and his wife looked after the welfare of Eswaramma. He do not know whether the extent of plaint schedule property in

O.S.No.9/2017 is only Ac.0.06 cents of land on ground but not Ac.0.09 cents of

land.

11. Cherukuri Venkateswara Rao who is third party was examined as PW2.

The son of the 1st attestor was examined to identify the signature of 1st attestor of

Ex.A2 dt/15.09.1976. In his cross examination he admitted that his father was close associate of 2nd plaintiff about 40 years. He has not filed any documentary proof to show that his father was in Coma for about six months prior to his demise. He admitted that Kammula Veera Raghavaiah fostered and looked after D1 since his --12- - childhood by educating him. He also performed the marriage of D1. The 1st defendant used to extend his assistance to Veera Raghavaiah in his business affairs and his financial affairs. At about 20 years ago his father signed on the document at the time of registration of partition deed. Earlier he also signed number of times on several papers which are in possession of his elder brother Rajendra Babu. He admitted that his father asked PW1 to advance money to one Ramisetty

Srimmanarayana. He admitted that there is variation of signatures on Ex.A4, Ex.A2 and Ex.B5. He know Damarla Venkateswara Rao and Nandiwada Venkata

Subrahmanya Sastry since his childhood. He got acquaintance with PW1 since his childhood and he is in touch with PW1 regularly. He admitted that by the time of execution of Ex.A2 he was aged about 18 years. By that time, Raghavaiah,

Eswaramma Venkateswara Rao, his wife, D1 and his wife, Damarla Venkateswara

Rao, his father, the writer namely Subrahmanya Sastry were present. He do not know who narrated the contents of Will to the executor. The draft of Ex.A2 was also prepared at the house of Veera Raghavaiah. He do not know the other cases filed in this court. He do not know the details of case filed in O.S.No.34/2004 in the court for which he brought his father to court who gave evidence in that case. His father got acquaintance with Chinta Venkateswara Rao since long time prior to his death. He do not know whether 1st defendant was taken in adoption by Veera

Raghavaiah. Raghavaiah had no children. He do not know whether the school certificates of Hanumantha Rao and Chinta Venkateswara Rao show their father name as Veera Raghavaiah. His father is in the habit of attesting documents.

Sometimes his father used to ask him to take him whenever he intends to attest the documents.

12. PW.3 is the son of PW.1, she admitted that the property in respect of which his father executed settlement deed/Ex.A5 in her favour, has no connection with the suit schedule property. He is not party to Ex.A6/partition deed and the schedule property is not covered by Ex.A6. She admitted that Ex.A1 does not contain --13- - recital that his mother Chinta Seetha Maha Lakshmi has taken care of Veera

Raghavaiah and admitted that as per Ex.A1 all the properties were bequeathed in favour of Hanumantha Rao and his father Chinta Venkateswara Rao except Ac.0.09 cents which was bequeathed in favour of Chinta Venkateswar Rao, J.Hanumatha

Rao and J.Srinivasa Rao. He deposed that her parents filed suit in O.S.No.170/2016 against Hanumantha Rao and his children for declaration of their right. Veera

Raghavaiah had four sisters and he do not know whether he got brothers. He cannot say the names of sisters of Veera Raghavaiah who were alive by the time of his demise. For the first time he came to know about the execution of Exs.A1 and

A2 when he availed the housing loan in the year 2002. He deposited the Will dated 01.07.1976 at the time of availing housing loan from the bank.

13. DW1 in his cross examination deposed that he did not file any registered partition deed between himself and Chinta Venkateswara Rao. To his knowledge the surname of Veera Raghavayya was Kammula but not Jarugu. The surname of biological father of Veera Raghavayya was Jarugu. The said Veerayya has two sons namely Veera Raghavayya and Pothuraju. He admitted that himself and Chinta Venkateswara Rao never brought the above said land acquisition proceeding to the knowledge of the defendants 4 to 6. He admitted that all the properties belongs to Veera Raghavaiah is his self acquired properties which are shown in O.S.No.34/2004 pending on the file of this court. Veera Raghavayya settled two properties one each to him and Chinta Venkateswara Ro by virtue of two respective settlement deeds. He admitted that Eswaramma died on 17.05.1981;

Eswaramma had executed a Will bequeathing her properties to Chinta

Venkateswara Rao. He admitted that he never mentioned in any of his pleadings in the suits that about the execution of Will by Eswaramma in favour of Chinta

Venkateswara Rao. He admitted that Chinta Venkateswara Rao is the only male son to his natural parents. He did not file any receipts showing the payment of property tax to Appanaveedu Grampanchayat. He came to know about the codicil dated --14- - 15.09.1976 subsequent to the filing of the suit in O.S.No.34/2004. He did not ask the Chinta Venkateswara Rao about the codicil got filed by him in the suit in

O.S.No.34/2004. He admitted that Chinta Venkateswara Rao brought in existence

codicil dated 15.09.1976 which is a fabricated and forged document to knock away more share in the properties of Veera Raghavayya. He admitted that partition deed of the year 2014 and settlement deeds executed by him in favour of the defendants 2 and 3 are executed after filing the suit in O.S.No.34/2004. He admitted that there were cordial relations between Veera Raghavayya and his brother Pothuraju. He deposed that he know that the suit schedule property is Ac.0.09 cents in

Appanaveedu village and K. V. Raghavayya is the absolute owner of the said

Ac. 0.09 cents (Plaint schedule property). He admitted that the plaintiff filed suit for partition of the plaint schedule property into 3 equal shares and to allot one such share to him. The plaint schedule property was bequeathed to him, plaintiff and his brother Jammisetty Srinivasa Rao. Jammisetty Srinivasa Rao was died in or about 1998. There is no registered partition between himself and the plaintiff regarding the plaint schedule property. Eswaramma is the wife of Kammula Veera

Raghavayya. The family of the plaintiff were residing in the house of Veera

Raghavayya and Eswaramma till their demise. The defendants 2 and 3 are the son and daughter of the 4th defendant. He admitted that 3rd defendant executed the registered settlement deed dated 12.03.2004 in favour of 2nd defendant for an extent of 242 sq. yards. He did not file any suit challenging the settlement deed

dated 12.03.2004. The defendants 2 to 4 filed a suit in O.S.No.34/2004 on the file

of this court for partition of the properties of Kammula Veera Raghavayya. He filed

I.A.No.2218/2006 in O.S.34/2004 to implead him as 12th defendant in O.S.34/2004 and the same was dismissed. He has not preferred any revision against the orders in I.A.No.2218/2006. He has gone through the contents of the plaint and the written statement in O.S.No.34/2004 and also the orders and then he got filed

I.A.1118/2006. He filed O.S.423/2006 against 2nd defendant for permanent --15- - injunction and the said suit was transferred from Junior Civil Judges Court, Eluru to this court and renumbered as O.S.No.85/2012. Item No.1 in O.S.No.85/2012 is

Ac.0.09 cents of site in Appanaveedu village which is the plaint schedule property.

He has not joined Venkateswara Rao (plaintiff) as party to the said suit. According to himself and plaintiff is entitled to share in item Nos 1 and 2 of the schedule in

O.S.No.85/2012. He admitted that by virtue of this suit filed by the plaintiff, no harm

or injustice caused to him. As per the relief sought in the suit, the plaintiff claiming

Ac.0.03 cents out of Ac.0.09 cents stating that he is entitled to the remain Ac.0.06 cents. He accepted and admitted the will dated 01.09.1976executed by Kammula

Veera Raghavayya. The Will dated 01.09.1976 (Ex.A1) was filed into the court in

L.A.O.P.28/1976 on the file of the Sub-Court, Gudiwada by Smt.Kommula

Eswaramma. There are no disputes between himself and plaintiff regarding the properties of Kammula Veera Raghavaiah and infact they both entered into registered partition in respect of the properties got by them from Kammula Veera

Raghavayya. He admitted that the plaintiff gave evidence in L.A.O.P.28/1976 on behalf of Kammula Eswaramma. The original of Ex.A1/Will dated 01.09.1976 was received by the plaintiff from the court at Gudiwada. He admitted that he did not mention as to how he got custody of ex.B2. He deposed that he found Ex.B2 in the

Rice Mill records. Till 2004 the Rice mill is joint between himself and plaintiff and from 2004 onwards till the registered partition in 2014 he ran the mill exclusively for himself. There is no partition of the schedule site into 3 equal shares between himself, his brother Srinivasa Rao and plaintiff. There is no document with himself to show that Ac.0.03 cents out of Ac.0.09 cents belongs to Jammisetty Srinivasa

Rao was partitioned between himself and the plaintiff. He admitted that as per

Ex.A1/Will Kammula Veera Raghavayya has not bequeathed any immovable properties to his wife Eswaramma except the compensation awarded for the land acquired by the Government for Hanuman Junction bus stand. Eswaramma claimed compensation from the court in LAOP 28/1976 in pursuance of Ex.A1/Will. There is --16- - no document with him to show that he was adopted by Kammula Veera

Raghavayya. He admitted that Ex.A1/Will and Ex.B1/settlement deed there are no recitals that he was adopted by Kammula Veera Raghavayya. In O.S.No.34/2004 the plaintiff is not a party and his wife Seetha Mahalakshmi is the 11th defendant.

He admitted that Chinta Seetha Maha Lakshmi pleaded in O.S.No.34/2004 that

Kammula Veera Raghavayya executed Ex.A1/Will dated 01.09.1976 and Ex.A2 codicil dated 15.09.1976. He did not file any separate suit for declaration of his right and title over the property by Ex.A2/Codicil. The property covered by the alleged codicil dated 15.09.1976(Ex.A2) was originally bequeathed jointly to himself and the plaintiff. In this suit the property covered by the codicil (Ex.A2) is not subject matter.

He has not pleaded in his written statement that there was an oral partition of the property jointly got by himself and the plaintiff and also the property jointly acquired by his wife and the wife of the plaintiff. He admitted that his wife and the wife of plaintiff are not parties and executants of the partition deed dated 14.12.2004 referred in his chief. So also in the registered partition took place in year 2014 between himself and the plaintiff, their wives are not parties. He admitted that the extent of Ac.0.09 cents shown in the suit schedule is the property bequeathed by

Kammula Veera Raghavayya under Ex.A1/Will; as per the said Ex.A1/Will, himself, his brother Srinivasa Rao and the plaintiff are entitled to an equal share in the plaint schedule property. He admitted that he did not taken steps questioning the settlement deed executed by D3 in favour of D2 and also seeking partition of the schedule property between himself and 1st plaintiff. He has not issued any notice to

D2 and D3 about the settlement deed executed by D3 on 12.03.2004 in favour of

D2. He did not ask for declaration of his title over the said Ac.0.09 cents in

O.S.No.85/2012 for himself on behalf of the plaintiff regarding Ac.0.09 cents. Item

NO.2 in O.S.No.85/2012 is also joint property in between himself and the plaintiff.

There is no authorization to file the suit on behalf of the plaintiff regarding item

No.2 in O.S.No.85/2012. There is no reference regarding Ex.A1/Will dated --17- - 01.09.1976 in the alleged partition deed dated 14.12.2004 between himself and plaintiff. According to himself, non mentioning of the Will dated 01.09.1976 in the partition deed dated 14.12.2004 is not a ground to dispute to Will dated 01.09.1976 that there is no such Will. He admitted that original of Ex.A1/Will was filed in

O.P.No.28/1976 on the file of Sub-Court, Gudiwada by Smt. Eswaramma as the compensation amount for the land acquired was bequeathed to her by Kammula

Veera Raghavaiah. Ex.A6 partition deed dated 10.01.2004 is regarding the property settled by Kammula Veera Raghavaiah in favour of himself and the plaintiff but not for the properties covered by Ex.A1/Will. There is no reference of Ex.A1/Will in

Ex.A6/partition deed dated 01.01.2004. Chinta Seetha Mahalakshmi is the daughter of Jarugu Pothuraju natural brother of Kammula Veera Raghavaiah. Himself and

Chinta Venakteswara Rao are the children of two natural sisters of Kammula Veera

Raghavaiah. Since the date of marriage of Chinta Seetha Mahalakshmi with the plaintiff, she and plaintiff were resided with Kammula Veera Raghavaiah and

Eswaramma. His wife Sasi Devi is not related to Kammula Veera Raghavaiah. There is no pattadar pass book and title deed in his favour and also in favour of Chinta

Venkateswara Rao for the said Ac.3.75 cents. He did not pay revenue for the said land since 1976. There is no registered partition deed between himself and Chinta

Venkateswara Rao regarding Ac.3.75 cents of land. It is not mentioned in the registered settlement deeds dated 19.05.2006 executed by him in favour of his sons

Jeethendra and Devendra Veera Raghava Rao, there are no recitals that he got the property covered by two settlement deeds as per the partition deed dated 14.12.2004. He executed two settlement deeds in favour of his sons two years after the suit in O.S.No.34/2004. He did not mention in his affidavit in support of

I.A.No.2218/2006 in O.S.No.34/2004 about the alleged partition deed dated 14.12.2004. He did not mention separate boundaries to item Nos 1 and 2 in

O.S.No.85/2012 for his share and the share of the plaintiff. There are no disputes

with regarding the land covered in Ex.A2 codicil between himself and the plaintiff --18- - or between the plaintiff in O.S.No.34/2004 and themselves (himself, plaintiff and

Chinta Seetha Mahalakshmi. He has not issued any notice to Chinta Seetha

Mahalakshmi immediately after he noticed the codicil filed by her in O.S.No.34/2004 and he has not filed any suit against her and her husband seeking declaration of his half share in Ac.3.75 cents and for partition. He admitted that on the date of execution of two settlement deeds by himself in favour of his sons, the suit in

O.S.No.34/2004 is pending and injunction granted is in force. He has no objection

for partition of the plaint schedule properties into three equals and allot one such share to the plaintiff and two such shares to him by ignoring the settlement deed executed by D3 in favour of D2.

14. Kandada Venkata Ramakrishna who is third party was examined as

DW2. In his cross examination he deposed that he does not know the details of the subject matter of suit properties. He deposed that his father used to work as a clerk in the Mill of Kammula Veera Raghavaiah; through his father he came to know that the details of plaintiff and Chinta Venkateswara Rao are the nephew of Veera

Raghavaiah and they are treated as fostered/adopted sons of Veera Raghavaiah.

15. Defendant No.2 was examined as DW3. In his cross examination he admitted that himself, defendants 3 and 4 filed suit O.S.No.34/2004 on the file of this court seeking partition; O.S.No.34/2004 they have shown the plaint schedule property as one of the item an extent of Ac.0.03 cents. He deposed that at present due to road widening it was acquired only Ac.0.06 cents left; by the date of filing of

O.S.No.34/2004 it is Ac.0.09 cents in existence. He admitted that they have not

pleaded in the written statement Ac.0.06 cents left after the land was acquired due to road widening; eastern boundary to the plaint schedule property relates to his father to an extent of Ac.0.07 cents. He admitted that in the said Ac.0.07 cents there is a building with compound wall; patta was issued in favour of his father with regard to Ac.0.07 cents so also in favour of the testate i.e Kammula Veera

Raghavaiah for the schedule property. He along with his mother who is 4th --19- - defendant residing jointly in the house of his father which is towards eastern side of the schedule property. No partition was effected among their family members after the death of his father with regard to their properties. He admitted that the

Will of the plaintiff i.e Chinta Seetha Mahalakshmi is the 11th defendant

O.S.No.34/2004; Seetha Mahalakshmi has taken the plea in O.S.No.34/2004 that

the testator executed a Will dated 01.09.1976 and codicil dated 15.09.1976. He admitted that 4th defendant depose evidence in O.S.No.34/2004. The plaint schedule property is a vacant site. No document was executed in their favour by late Kammula Veera Raghavayya in respect of the plaint schedule property. They have not impleaded 1st defendant as party in O.S.NO.34/2004. He admitted that the deceased Kammula Veera Raghavayya executed registered settlement deed in favour of plaintiff and 1st defendant in respect of Rice mill and theatre. They have not shown the above properties (Rice mill and theatre in O.S.No.34/2004). They have not allotted any share to 3rd defendant in their properties. He do not know whether the deceased Kammula Veera Raghavayya has settled any property in favour of 3rd defendant. He admitted that settlement deed was executed by 3rd defendant in his favour to an extent of 242 sq.yards; the property covered under settlement deed executed by 3rd defendant in his favour towards western side of his father’s property. He admitted that they pleaded in O.S.No.34/2004 that Items 2 to 8 of plaint schedule in O.S.No.34/2004 are the absolute properties of Kammula

Veera Raghavayya; they have pleaded that the said properties were purchased with his exertions. Till the death of Kammula Veera Raghavaiah, he stayed in his own house at Hanuman Junction. He admitted that their family and Kammula Veera

Raghavayya family used to reside in separate house. He do not know when

Kammula Veera Raghavayya shifted his residence to the house at Hanuman

Junction. Hanumantha Rao and Venkateswara Rao used to reside at Kammula Veera

Raghavayya house. He deposed that at the age of 10 they came to the house of

Raghavayya for eking their livelihood and doing some work so also they used to --20- - come to their house also. He admitted that Kammula Veera Raghavayya performed their marriages. He deposed that Pothuraju who is another maternal uncle and

Raghavayya jointly performed their marriages. Pothuraju expired in the year 1982.

Chinta Sita Mahalakshmi is the daughter of Pothuraju through his 1st wife. He do not know when the 1st wife of Pothuraju expired. He admitted that Raghavaiah executed settlement deed in favour of plaintiff and 1st defendant with regard to the house of Hanuman Junction giving equal shares. He admitted that 1st defendant is also claiming right over schedule properties in O.S.No.34/2004as a legatee under the Will (Ex.A1). They have not taken any steps in that suit to add the 1st defendant as a party to the proceedings in O.S.No.34/2004. He admitted that they filed petition seeking for expert opinion with regard to the signatures of Veera Raghavayya on

Will (original of Ex.A1). Codicil (original of Ex.A2). He admitted that as admitted writings settlement deed executed by Veera Raghavayya was sent along with Will and codicil for expert opinion in O.S.No.34/2004. He admitted that expert opinion that the signatures on Will and Codicil are of Veera Raghavayya writings; the document shown to him is the settlement deed dated 12.03.2004 got executed by his sister in his favour. Subject matter covered under Ex.A9 is the property which his sister got from his senior paternal uncle Veera Raghavayya. There is no convince deed executed by Veera Raghavayya in favour of his sister with regard to the property covered under Ex.A9. He admitted that after execution of Ex.A9 they filed

O.S.No.34/2004. They pleaded in O.S.No.34/2004 that the parties to the

proceedings are the legal representatives of Veera Raghavayya. The subject matter of Ex.A9 is Ac.0.06 cents wherein his sister who is the executants of Ex.A9 is not the exclusive owner to the property. He admitted that they have not mentioned the existence of Ex.A9 in O.S.No.34/2004; O.S.No.34/2004 they excluded the property covered under Ex.A9 and shown Ac.0.03 cents for partition. He admitted that in

Ex.B1 it was mentioned that since the age of 3 1st defendant used to reside in the house of Kammula Veera Raghavayya as a fostered son and also got education --21- - through Kammula Veera Raghavayya and his wife. He admitted that the properties mentioned in Ex.B1 were not the schedule property in O.S.No.34/2004 and they are claiming any right, title over the properties covered under Ex.B1. Kammula Veera

Raghavayya expired in the year 1976. His father expired in the year 1982. His paternal aunt expired in the year 1987. Kammula Veera Raghavayya had five sisters and one brother. By the date of death of Kammula Raghavayya only one sister and one brother were living. He admitted that they have not filed any documentary proof showing that their father and paternal aunt who are living by the date of death of

Kammula Veera Raghavayya succeeded and they were enjoying the properties relating to this suit and O.S.No.34/2004. He admitted that they have not filed any proof or record showing that they are in possession and enjoyment of above properties after death of his father and paternal aunt. There are five shops in the plaint schedule property. He deposed that the plaintiff is receiving the rents from the tenants of the shop. He admitted that they have not pleaded that the plaintiff is receiving the rents relating to the shops. He admitted that in the said LAOP proceedings Eswaramma and Venkateswarulu were added as parties to the proceedings. He has not aware whether Eswaramma has not mentioned with regard to the existence of codicil in the said proceedings (LAOP). He do not know whether any claim were preferred either his father or his paternal aunt in the said LAOP after the death of Veera Raghavayya.

16. As the plaintiff proved his bonafides entitling the relief, this issue is settled infavour of plaintiff entitling for partition of plaint schedule property into 3 equal shares and allot one such share to him.

17. Issue No. 1 1st defendant’s admitted the will butcontended that Codicil is forged one. Infact the learned counsels admitted the fact that “will” and “codicil” were sent for expert opinion in the other suit where the writing --22- - ( signature were admitted to be the writings of the testator) was sent along with ‘Will’ and admitted writings for experts opinion which was opined. Anyhow if at all the contention of the 1st defendant that codicil is a forged one what is the evidence let in to suspect the document.

18. A Will is a testament that outlines the distribution details of one’s possession such as investments, and other interests after the owner’s death. A codicil is required when there is need to make changes and update the will. So, if a simple change in a Will is made then it is to deemed codicil. A Codicil can be made only to an existing will not to any future wills. A Codicil is to be read as part of the will and is considered as an extension of the will, i.e., the testator, shall be the person who also makes the codicil and signs it in the presence of two witnesses. Also a specific bequest can be altered by carrying out an amendment to the old will, colloquially known as codicil.

19. When the 1st defendant admits the execution of will (Ex.A1) when the signatures on both the documents Ex.A1 and Ex.A2 are one and same (the testator) and the testator is having habit of conveying his intention by way of will. The contention of defendants 2 to 4 that will and codicil are both suspicious documents as nothing was given to his wife i.e., Eswaramma and no reasons assigned. Hence, the will is a suspicious document and no right or title can be conveyed under the said will codicil.

The attesters signatures of Ex.A1, A2 were identified by their sons as the said attesters are no more. The evidence reveals that the wife of

Raghavayya submitted and received the Land acquisition compensation as per the bequeath made under the will that shows the will came into effected. If really the will is a suspicious document as alleged as nothing was bequeathed in favour of his wife the question of receiving the --23- - compensation by the wife of Raghavayya on submitting the will does not arise. When the wife of Raghavayya received the compensation by submitting the will it is proved to be genuine admitted by the parties who are having claim interest over the property. The learned counsel for 1st defendant vehementlycontended there are no change of circumstances to change the attitude or intention of the testator to execute a codicil.

20. The learned counsel for the plaintiff vehemently contended that the plaintiff’s wife is no other than his brother’s daughter (born through the 1st wife of his brother) to whom the said Raghavayya and his wife performed marriage and are residing with them; further the testator felt to convey some property in her favour he executed, the said document. The contention of the counsel 1st defendant that the will was within the knowledge of one and all as the same was submitted before the land acquisition officer for getting the compensation whereas the codicil was no seen the light of the day.

21. The admissions with regard to relationship and the fact plaintiff and 1st defendant were fostered by Jarugu Veera Raghavaiah and his wife. Though the defendants 2 to 4 are the legal heirs of Pothuraju and his family member the evidence goes to show that they were not having close intimacy unlike plaintiff and 1st defendant. Even according to defendants 2 to4 the plaintiff and 1st defendant used to manage the proportioned and they lived with J.V.Raghavayya and his wife. It also revealed from the evidence that 1st defendant and his wife used to have separate cooking whereas the plaintiff and his wife used to have same men with J.V.Raghavayya and his wife. If really the plaintiff and his wife forged or fabricated a codicil certainly there would be a revolt or bad atmosphere which may lead to several multiplicity of litigations. No such --24- - instances arised. The contention of defendants 2 to 4 that the ‘Will’ should be suspected as the will does not contain the main aspect as to why the wife of Raghavayya was not given any property and that is a strong suspicious fact.

22. Infact they are residing along with plaintiff and his family as they are looking after them. If really it is to suspected the wife of

Raghavayya introduced the will by claiming right over the compensation.

The will came in to free immediately after the death of the testator and the codicil is part of the will. Infact the property covered under the codicil is not the subject matter of this suit. When the 1st defendant admitted the will and also admitted that partition was not effected with regard to this property, there is no hesitation to grant the relief as prayed for.

2. The whole oral and documentary evidence let in clearly shows that plaintiff and 1st defendant were fostered and the testator has executed several documents. Settlement deeds in favour of plaintiff and 1st defendant later got executed will and within a short span of time he got executed codicil in favour of the wife of plaintiff who is no other them his brothers daughter through his 1st wife and with whom the said

Raghavayya and his wife performed marriage with plaintiff. The evidence of DW-1, DW-3 clearly proves the plaintiff’s case and no iota of doubt remains to suspect the bonafides and genuinity of will and codicil. The evidence clearly reveals that the testator has not shown any interest over the defendant. Even the settlement deeds were executed infavour of plaintiff and 1st defendant and it is an admitted case that the testator and his wife resided along with plaintiff. Though 1st defendant used to reside with them the evidence shows that they used to be separated is kitchen.

--25- -

Moreover it is an admitted fact that the properties are his self acquired.

Hence the plaintiff proved his case by preponderance of probabilities.

24. As the subject matter is not the property covered under codicil but is the subject matter of the ‘Will’ which is proved. Hence, this issue is settled accordingly.

25 Issue No.3:-

In the result:- In the result the suit is preliminary decreed without costs by partitioning the plaint schedule property into 3 equal shares and allotting one such share to the plaintiff and the remaining 2/3 share to the 1st defendant.

The 2nd defendant is hereby restrained from interfering with the plaintiffs peaceful possession and enjoyment of plaint schedule property in any manner.

Typed to my dictation by Stenographer directly on computer, corrected and

pronounced by me in the open court, this the 18th day of November, 2022.

Sd/-Smt.P.Manga Kumari

VII ADDL.DISTRICT & SESSIONS JUDGE,

ELURU, WEST GODAVARI.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PLAINTIFF:- FOR DEFENDANT:-

PW1:Chinta Venkateswara Rao DW1:J.Hanumantha Rao

PW2:Cherukuri Venkateswara Rao DW2:K.Venkata Ramakrishna

PW3: Chinta Lakshmi Raghavan. DW3:J.Srinivasa Rao

DOCUMENTS MARKED

FOR PLAINTIFF:-

Ex.A1 Certified copy of Will dated 01.09.1976 (the plaintiff original of Ex.A1 in O.S.No.34/2004. Ex.A1 is marked subject to proof)

Ex.A2 Certified copy of Codicil dated 15.09.1976 executed by Kammula Veera Raghavaiah. (the plaintiff filed original of Ex.A2 in

O.S.No.34/2004. Ex.A2 is marked subject to proof)

--26- -

Ex.A3 Certified copy of deposition of Cherukuri Sri Rama Murthy in

O.S.No.34 of 2004 (PW1 stated that Cherukuri Sri Ramamurthy

is bed ridden and incapable of giving evidence as he is in coma)

Ex.A4 Certified copy of deposition of Dhamarla Venkateswara Rao in

O.S.No.34/2004 (PW1 stated that Dhamarla Venkateswara Rao

is no more).

Ex.A5 Certified copy of registered settlement deed dated 19.06.2002

Ex.A6 Certified copy of registered partition deed dated 10.01.2014.

Ex.A7 Death certificate of Cherukuri Sri Ramamurthy

Ex.A8 Certified copy of order of Settlement officer, Eluru dated 09.08.1969

Ex.A9 Certified copy of settlement deed dated 12.03.2004

FOR DEFENDANT:

Ex.B1 Certified copy of settlement deed dated 07.09.1976

Ex.B2 Certified copy of letter written by Cherukuri Sri Ramamurthy.

Sd/-Smt.P.Manga Kumari

VII ADDL.DISTRICT & SESSIONS JUDGE,

ELURU, WEST GODAVARI.